On October 5, the Constitution of the Federative Republic of Brazil celebrated its thirty-fifth anniversary. Thirty-five years may be a relatively short period of existence when compared to other democratic constitutions, yet it is a considerable length of time when considering the peculiarities of Brazilian constitutional and political history.
The current Constitution of Brazil is 44% longer than the original 1988 Constitution (and the second-longest in the world, behind India’s Constitution). With 131 constitutional amendments passed after its promulgation, the Brazilian Constitution has proven resilient to the modern challenges of democracy and adaptable to socio-constitutional dynamics. While some Brazilian legal scholars claim that “there is no resilience without loyalty,” the Constitution has withstood repeated political and economic crises, a public health crisis, two impeachments, and coup attempts.
In 1988, the Brazilian Constitution had a “Janus head”: it looked to the past to overcome over two decades of military rule but also looked to the future to innovate the Brazilian system and outline a design for a modern, liberal, and democratic state.
At that time, the intention was to reconcile the interests of different political actors. The constitutional process was characterized by openness to numerous social groups that mobilized to have their rights reflected in the constitutional text. A “maximizing” pact was constructed: inclusive, flexible, and, in some cases, highly specific.
A constitutional text was crafted in terms of principles, in which the needs and interests of various groups were reflected in the text, despite being antagonistic and conflicting. While constitutional duties were not highlighted in the text, the individual rights and guarantees enumerated throughout Article 5, spanning 79 paragraphs and topographically located after the enunciation of the Fundamental Principles, essentially inaugurated the Constitution and demonstrated the constituents’ concern in granting them due normative importance.
According to constitutionalist Clemerson Cleve, the Constitution “outlined the means to turn the constituents’ promises into reality, thus reducing the gap between normativity and the concreteness of the lifeworld.” On October 5, in a solemn session of the National Congress, the President of the Congress, Senator Rodrigo Pacheco, stated that “more than a normative text, the Constitution is a letter of promises addressed to the Brazilian population”
Despite being worthy of praise, the statement may require tempering, as a constitutional life is far from being a reality for a significant portion of Brazilians. According to research, a state of disinformation about the content of the Constitution prevails among a significant part of the population. Thus, it seems that constitutional maturity and materialization are still promises that must be effectively fulfilled in the long run.
In any case, the Republican Constitution represented for Geraldo Alckmin, Vice President of Brazil and a member of the Constituent Assembly, “a new Constitution for a new era, signifying a new pact and a new commitment. A pact of reconciliation with more justice and equality and a commitment to freedom.”
Through the “Citizen Constitution,” the Federative Republic of Brazil achieved its longest period of “constitutional stability” after “a republican tradition of coups, counter-coups, and breaches of constitutional legality” (Barroso). It is even said that the Brazilian Republic began with a coup.
Although the Constitution is understood as a letter of promises by some scholars, many of them have not been fulfilled so far, giving rise to what has been called the “crisis of (in)effectiveness of the Constitution” in Brazil. On one hand, our Constitution presents notes of inclusion, flexibility, and specificity that “tend to produce the real reasons for constitutional durability.” On the other hand, to this day, “we do not have popular knowledge of constitutional rights, nor a popular attachment to the Constitution” (Rubens Glezer).
There is in Brazil, according to Glezer, a “profoundly unequal application of the law in the country, as well as the intense legal uncertainty, caused in part by inconsistency in decision-making patterns and in part by the recurrence of practices of constitutional evasion” (Glezer).
There is still an incomplete perception in the country regarding the role of institutions ex vi the Constitution, which ipso facto derives from an incomplete and immature interpretation of our own Charter. We still lack the great moral agreements or Rawlsian “overlapping consensus” necessary for the consolidation of a “constitutional culture,” which inevitably affects i) the constitutionalism tradition itself; ii) the level of knowledge that people have about their own Constitution; iii) the constitutional internalization by the people; and iv) the understanding of the role and practices of argumentation that guide the interaction between citizens and public agents on issues related to the meaning of the Constitution.
It is undeniable that the revitalization of constitutional jurisdiction by neo-constitutionalism has also enhanced the role of constitutional courts. The 1988 Constitution gave the Brazilian Supreme Federal Court a useful “arsenal” of instruments for the reaffirmation and implementation of its norms. It was through the direct interpretation of the Constitution that the Brazilian Supreme Federal Court, in these 35 years, established the prohibition of nepotism in public administration, authorized investigations with embryonic stem cells, declared the non-reception of the Brazilian Press Law from the military regime, recognized the right to same-sex unions, decriminalized the possession of drugs for personal use, criminalized homophobic and transphobic practices, and recognized the rights of certain minorities (women, indigenous people, and blacks).
The future is challenging, but the 35th anniversary of the Constitution of the largest democracy in Latin America inspires confidence and hope. Tempora mutantur, nos et mutamur in illis (the times change, and we [and the Constitution] change with them).