How can courts respond to the omissions by majority powers in the formulation and implementation of public policy? Based on this question, this paper addresses the State of Unconstitutional Affairs, an institute developed in Colombia and incorporated by the Federal Supreme Court in ADPF no347/DF, based on the many dialogues between South American courts. This research adopts the inductive method, in the analysis of the many decisions rendered by Colombian and Brazilian courts, in order to expose the incidental assumptions and limits imposed on the application of jurisprudential construction. This study, therefore, discusses the feasibility of judicial activism legitimized by the protection of fundamental rights, in light of the principle of the separation of powers, by the courts responsible for judicial review.