ADPF 973 – Entre a Norma e a Exclusão: Legalidade e Constitucionalização Simbólica

Abstract

This article aims to analyze the legal thesis established by the Brazilian Supreme Court in ADPF 973, partially upheld on December 18, 2025. In its ruling, the Court acknowledged the existence of structural racism in Brazil and serious violations of fundamental constitutional principles, while nevertheless rejecting the characterization of an unconstitutional state of affairs. The study is grounded on the premise that, although the Brazilian State has undertaken efforts to implement measures aimed at mitigating the effects of structural racism, such measures have thus far demonstrated limited effectiveness in light of the lived realities of the Black population in Brazil. Within this framework, it is argued that the decision should not depart from a broader interpretation of the principle of administrative legality, thereby exposing the dissonance between legal norms and their actual materialization in practice. The exclusion of the Black population from the practical scope of fundamental rights does not stem from mere legislative inaction, but from a systemic failure to generalize normative expectations across the legal order. The gap between constitutional text and social reality thus reflects a broader process of symbolic constitutionalization.

Keywords: structural racism, symbolic constitutionalization, social systems theory, rule of law, unconstitutional state of affairs