Constituent power and constitution-making process in Brazil: concepts, themes, problems
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Constituent power and constitution-making
process in Brazil: concepts, themes, problems
cristiano paixão, massimo meccarelli
Introduction the crisis serves to “put the action into
the future” (“infuturazione dell’azione”)4,
Studies on constitutional law have often after the collapse of dictatorships and
elected constituent dynamics1 as a the Second World War, it was a matter of
privileged object of analysis. However, focusing on constituent processes and on
current political dilemmas stimulate this the democratic perspective, as a way of
interest in a new way. The recurrence of definitively overcoming the inadequacies of
the state of “crisis” seems to afflict the the regime of the rule of law experienced in
expansive trajectory of the constitutional the liberal age. The idea of writing a history
State2 and, with it, of the democratic of the emergence (and performativity) of
ideas, concepts and devices, one centered
regimes. In such a context, if we wish to
around the novelty of the democratic
avoid a retrotopic view3, the questions that
constitution (think of concepts such as
we can address to history can no longer be
fundamental rights, human rights, social
about the performative potential of ideas, rights, constituent power, citizenship,
concepts and devices, or rather, they can equality, political party, etc.) was related
no longer be used to narrate a history of to the new constitutional framework and to
the emergence of ideas, or even merely to an attempt to obtain a critical point of view
propose a genealogy of such ideas. of reality and contribute to opening up new
This approach to the heuristics of horizons for law.
history has certainly offered a solid basis Today, however, the problem of
for several historiographic and theoretical “putting” the crisis into the future
itineraries in the past few decades. If it concerns precisely those new frameworks
is true – as Flavio Lopez de Oñate had of constitutional States that have marked
already highlighted – that the study of history since the end of the Second World
giornale di storia costituzionale / journal of constitutional history 40 / II 2020, pp. 29-54
issn 1593-0793 / isbn 978-88-6056-673-7 / © eum 2020
29Intersezioni
War (in Europe) and after the end of the takes into account the positioning that we
last period of dictatorships (in South are suggesting.
America). In order to maintain a critical
viewpoint – and to maintain the problems
that the constitutional State has managed
to take care of at the center – it would seem For a phenomenology of the constitution-
convenient to try a different approach and making process: a tentative assessment
to update the questions that we can address
to history. Constitutions have various functions and
Instead of performativity, those are used in different ways by political and
questions should look at the original limits social actors. We could say, however, that
of the ideas of concepts and devices, they they represent an important instrument of
should clarify their bonds of theoretical separation – and subsequent connection –
sustainability (or even, we could say, their between law and politics. On the one hand,
functional assumptions)5, after which they condense the fundamental political
those ideas, those concepts, those devices, options of a given community in a single
cease to fulfil, guarantee, their expected document. On the other, they assume the
functions. In this way, history would be role of the supreme norm of the legal system.
able to highlight these constitutive limits Precisely because of these characteris-
and thus, with this, to contribute to an tics, constitutions are not produced rou-
understanding of the perspectives of tinely or even periodically. They have a cer-
meanings within our conceptual arsenal, in tain uniqueness, which also manifests itself
order to face the current problems. in the political and social processes that
How would it be possible to write a will have marked their elaboration. Some
constitutional history, one able to offer authors, such as Bruce Ackerman6, speak
a reconstructive outlook of this kind? of “constitutional moments”. Although the
This article starts from this fundamental expression “moment”, as we will explain,
problem. Our aim is to point out some may not be entirely appropriate for our
paths and potential for investigations. It problem – since political processes have
is an initial presentation of ideas, which several temporalities, phases and, also,
means that the following reflections will “moments” – what should be highlighted
be rethought, re-read, in the light of the here is the singularity of the process itself.
development of tangible research and of We seek to emphasize that the process
critical observations. We intend to indicate of drafting a constitutional text involves the
traces to be followed up by researchers in expansion of any available options, if we
the field in general. At the end of the article, compare it with ordinary legislative activity.
we will point out some elements that could A constituent assembly – a political body
be examined in greater depth in specific that may have very different origins and
investigations of Brazilian constitutional composition – is not limited by procedures
history. We will start, however, by exploring established in the constitutional order that
the possibility of an approach to the study it is intended to overcome; above all, that
of the constitution-making process that same political situation which gave rise
30Paixão, Meccarelli
to the convocation and the functioning of itself. By this, we mean that the law is
the assembly allows the political actors, in intrinsically marked by time.
charge of writing the new constitutional The impact of time on the constituent
text, to have greater freedom in structuring process is also evident from a different
the connection between law and politics. point of view. In fact, law can imply time
In some cases, this unique political situation also as a device for its own attributions
may even be an instrument of pressure of meaning. Seen from this angle, time
for constitutional innovation. Political is internal to the legal dimension. It acts
processes involving regime changes are as a factor that tends to determine the
particularly significant – such as the law and the dynamics of its development,
constituent process that took place in South placing the legal problem in a context
Africa after apartheid, or the drafting of the of other problems that characterize that
new Constitution in Brazil after the end of temporality.
military rule. It is a question of ascriptive time, i.e.
Another aspect that must be considered time that affects the content that the law as-
concerns the temporal dimension. By sumes7. It express attributive force, repre-
definition, law is a system that continuously sents a special temporal condition, thus af-
articulates past, present and future. fecting the law’s regime either of permanence
As a textual phenomenon, modern law or of impermanence.
thrives in a context of interpretation. As for the first type, let us think of
Doctrinal reflections on legal rules and the custom, abrogation and constituent power;
collections of precedents (in similar cases these are all legal configurations at the
or not) make up a powerful backdrop to heart of constituent processes; they make
which the interpreter seeks to refer. But, time an element of their own content and
as is well known, interpreting norms is not use it to attribute foundation and stability
an operation that focuses essentially on the (therefore, permanence) to the norms. As
past. Legal norms are used in processes for the second type (the time that ties the
that involve conflicts, dilemmas and law to a condition of impermanence) we
demands. And these processes always give think of temporal configurations such as
rise to decisions taken in the present, for transition, crisis or emergency. Insofar as they
situations that presentify themselves. There indicate and determine a temporary state of
is also a forward-looking element in this law, they act as factors that bring legitimacy
context of interpretation: decision-making to it. Both of these forms of attributive time
bodies (judges, administrative authorities, are relevant for our problem.
private entities) are aware of the historicity Later on, we will return to this specific
of decisions, aware of the fact that a certain point. Here, however, we would like to
change in the orientation of the institution highlight that the comprehension of
that decides may denote a given direction attributive time differs from that of the
for the future. The selection of cases that constitutional moment. This latter tends to
will be decided by a Supreme Court or a concentrate on the special importance of
Constitutional Court in a given year, is part a historical moment (that comes into the
of a certain “agenda” within the institution light as a particular temporal condition) in
31Intersezioni
relation to the progress and the outcomes or even to impose an authoritarian regime,
of the constituent process; on the other in all cases there will be choices, decisions,
hand, ascriptive time, draws attention the affirmation of a new order.
to the complex matrix from which the Alongside the importance of the
constitution-making process has taken temporal factor, another element that
shape. characterizes the mise en forme of the
Alongside presentification and attributiv- constitution must also be considered: the
ity, there is a third aspect in which the tem- resilience of old frameworks and resistance
poral dimension highlights its relevance in to the constitution-making process itself.
the making of the Constitution: the disconti- Here, we are referring to a complexity
nuity. This can be found in the development that is barely perceptible if we restrict
of the work of a political body that claims to our attention to the strictly constituent
embody the original constituent power. Con- moment, but that is decisive from the point
stituent processes are often related to de- of view of historical analysis.
mands for transformation. In many types Despite its centrality – which must be
of transformations, not only in the classic considered even after the “normalization”
examples of revolution, such as those in of the constituent activity, when the new
the United States of America and France, text comes into force – the process of
one can speak of movements for the resto- preparing a constitution is no more than an
ration of a regime8 or, even of the negoti- important part of the material available for
ated transition between actors of a closing investigation. The “other side of the coin”
political regime and the future members of must be taken into consideration, namely,
a new political panorama in a given com- the de-constituent pressures that may arise
munity9. There are also acts committed by during the period in which a constitutional
authoritarian regimes, which seek and seize text is in force12. The combination of political
any opportunity to imbue their domination agendas at the domestic and international
with the appearance of legality (which may levels may mean, at times, a slowdown in
include the element of constitutionality)10. the implementation of a new constitution;
Under all these circumstances – very dif- this may occur through reforms required
ferent from one another and usually found by partners at the international level,
coordinated, in some manner or another, by situations of “white intervention” by
in various episodes of history – there is one supranational organizations or even stem
element all have in common: discontinuity from the transformation of the global
in relation to the immediate past. Whether to economic panorama13.
establish a new order from a clear rupture Another observation seems necessary:
with the past regime, or to proceed with a constituent power can arise gradually, in
restoration (which is nothing less than the a non-planned way, or even during the
recovery of a distant past regarding to a near regular activity of a political or legislative
past), or to negotiate the terms of an agree- body that did not originally have a
ment (which will involve a dispute over the mandate to draft a constitutional text.
past, that is, over what will remain in the The two classic examples derive from
“present of things future” of that past11), the first two manifestations of original
32Paixão, Meccarelli
Artists protesting against the military dictatorship, February 1968
constituent power. In the United States a constitution. It was a typical organ of
after Independence just as in Revolutionary the Ancien Régime, with stratification
France, two entities that had already been inherent to its own configuration. As is well
previously foreseen are convened and known, the Third State, when declaring
began to function. Throughout the process, itself autonomous, decided to become a
political transformations took place and constituent assembly14.
these same political bodies declared It is essential to emphasize that there
themselves constituent assemblies. The is no constitution created ex nihilo. Even a
Philadelphia Convention was convened, hypothetical “original constitution” cannot
as we know, to amend the Articles of avoid being inserted in time. The authors
Confederation, a constitutional document of the first modern constitutions – in the
that had been in force in the United United States in 1787 and in France in
States since 1777. In France, the General 179115 – had to deal with two constellations
States were called by the monarch in a of past experiences. The first was composed
context of political and economic crisis, of several legal and political documents
without, initially any intention of drafting that already existed when the texts were
33Intersezioni
drafted: in the case of the United States, the by the community, and which cannot be
Declaration of Independence, the Articles explained (or contained) by the regular
of Confederation and the various state functioning of the institutions, such as
constitutions; in the French case, there parliament, or the courts. In contrast, there
already were the Déclaration des droits de is the usual operation of institutions, as
l’Homme et du Citoyen and the legal norms in provided for in modern constitutionalism:
force both before and immediately after the laws approved by the competent bodies,
revolutionary process had broken out. The legal actions analyzed by the courts and, in
second condensation of past events involves this situation, the population is mobilized
the relationship with the pre-existing to a far lesser degree. By dealing with this
regime regarding the aforementioned polarity between “politics in exceptional
constitutions. The United States was a moments” and “politics in normal moments”,
nation that had won its independence from Ackerman manages to show that, in the
Britain. Revolutionary France had had, in political history of the United States there
its past, a dense political history marked were situations of the first type, such as
by the Ancien Régime, with its inequalities, when the Constitution of 1787 was drafted,
its distinctions of status and its vestiges of the period of reconstruction after the
feudalism. Civil War and, in the twentieth century,
This seemingly obvious observation the implementation of the New Deal, all
– that every constitution is a historical moments of greater mobilization and
artifact – also serves as a warning to participation of citizens in choosing the
constitutional history: that one should political direction of the community.
neither start from a radical separation This distinction has been incorporated
between the moments of elaboration of the into constitutional theory and has given rise
constitution (when the original constituent to a great deal of critical debate, which is
power comes into play) nor from situations still in full swing17. Its use, however, should
of ordinary validity of constitutional texts not be seen as natural, as if the contrast
(a circumstance in which only the derived were present at all times and in all places
constituent is present). Although the and were always operative for constitutional
distinction deserves to be maintained, it is history. That is because the distinction can
fundamental that the gap between the two transmit a certain nuance. It is possible –
activities does not widen too far. and does occur in some historical contexts
In the aforementioned volume by – that certain constitutional changes take
Bruce Ackerman16, that soon became very place without the presence of the original
influential in constitutional theory, the constituent power or even without the broad
author sought to establish two modalities mobilization of citizenship. Government
of relationship between politics and law, policies, for example, can induce
thus creating a persuasive explanation for constitutional transformations.
American constitutional history. According Moreover, the twentieth century wit-
to Ackerman, there are moments of nessed several manifestations of a certain
broader mobilization of the population in authoritarian constitutionalism – regimes
general, in which central issues are decided that sought to establish the constitution-
34Paixão, Meccarelli
al bases of their own will. In these cases, and the complexity of the registers that
there is the mobilization of a power appara- characterize it. For the post-modern
tus against active citizenship. There are no observer, the heuristics of the constituent
“extraordinary politics”, except in its worst process, rather than from the unilinear
aspects: the blatant use of the exception as a trajectory that links it to the result (the
mode of constitutional construction. constituted constitutional system), seem
On the other hand, situations of intense to emerge from the different tensions that
mobilization of the population may occur, intersect it, from its dispersive multi-
with an increase in popular participation directionality and, from its essentially
and in the occupation of spaces in the conjunctural value.
public sphere, but which are not followed So, for historical discourse it is a ques-
by constitutional innovation. This occurs tion of achieving an analytical approach
when the constitution operates as a kind of able to articulate and deconstruct the rele-
barrier, hindering the reform, or revision,
vance of the constitution-making process.
of its own terms, by means of more elaborate
Here, we can try a first approach to the
and complex procedures being adopted for
problem by rethinking the questions about
altering the text (such as the requirement
its “how” and its “what”.
of supermajorities for the approval of
With regard to the first point (the “how”
amendments). In these circumstances,
there will be mobilization, demands and of the constitution-making process) we
participation, but the institutional response propose considering the juxtaposition
will not materialize. between the terms constitutive / constituent.
With “constitutive” we intend to identify
the constitutional dynamics that have
effectively contributed to producing the
constitutional order as a normative fact;
Constituent and Constitutive Dynamics in the
constitution-making process they may have produced it either as a whole,
or, in some of its aspects. These dynamics
are both top-down or bottom-up, they can
On the basis of the observations made so far,
it is clear that the interest of constitutional be multiple, simultaneous, asynchronous
history in the constitution-making process and competitive, and above all express
stems from the complexity of the analytical conjunctural potential. Think, for example,
levels that such a topic encompasses. This of the concession of a Constitutional Charter,
is all the more relevant if, as we observed the enactment of a law of constitutional
at the beginning, the problem today is that importance, a decision of a Constitutional
of promoting a historiographical discourse Court that changes a constitutional rule, a
capable of preserving the quality of a critical transitional discipline, a revolutionary act
knowledge. For example, above and beyond or a coup d’état, that de facto establish a new
their relevant moments, the constitution- constitutional order (the first finalizing the
making process seems to be of interest for exercise of a constituent power, the second
the ascriptive times that mark its passage, imposing, through the use of force, a new
thus revealing the internal contradictions constitutional framework).
35Intersezioni
On the other hand, with the term for example, or even the term “factor”,
“constituent” we mean the potential of or “situation” seem more suitable when
the dynamics, the social and political searching for the constitutive/constituent
facts that intend (or claim) to contribute differential referred to above. Likewise,
to the production of a constitution. These this function could be performed by
are essentially bottom-up dynamics, the spatial concepts such as “field of action”,
bearers of a programmatic projection. “place of occurrence”, “localization”,
Think of the establishment, and the work, “spatialization”, etc. terms that a recent
of a constituent assembly, of a mass strike, historiography has used to explain the
of the dynamics of social cohesion favored complex phenomena of the construction of
by the exercise of transitional justice. national legal identities and State building
Constitutive and constituent dynamics, dynamics in particular with reference to
thus defined, stand out as distinct concepts Latin America18.
at the theoretical level. From a historical It is time, then, to address some
point of view – and this is precisely what elements of Brazilian constitutional history,
allows this juxtaposition to open up considering the observations proposed so
original analytical perspectives – they can far.
be combined (for example, when these
constituent dynamics succeed in making
the project that activated them come true)
or contrasted (a constitutive dynamic that Paths of constitutional history in Brazil.
serves to block or prevent a constituent Problems
dynamic) or move on autonomous tracks
(for example, when the constituent Brazil’s constitutional history is an authentic
dynamics do not succeed or, when the laboratory of political and institutional
constituent dynamics are implemented but experiences, given the diversity and intensity
without expressing a constituent force). of the political disputes, social conflicts and
As stated above, alongside the institutional solutions19 there. In the last
question of the “how”, it is also good to 20 years some innovative research projects
rethink the question of the “what” of the have begun to analyze, with originality,
constitutional-making process. Here it the problems of constitutional law in the
is a question of trying to overcome the Brazilian experience20. Let us look at some
unilateral conception of the constituent significant facts in this complex history.
process underlying categories, such as In less than two centuries, Brazil has
constitutional moment, turn, stage, etc.; produced seven Constitutions. A significant
it is a question of putting the foundational finding in Brazilian constitutional history
significance of the processes observed into is the relationship between political change
the background. The problem becomes, and constitutional construction. There
in fact, that of prioritizing a semantic is a direct correspondence between the
constellation capable of emphasizing the transformations of the political regime
conjunctural scope of the constitutional- and the emergence of a constitution. As
making process: the term “dynamic”, soon as Brazil became an independent
36Paixão, Meccarelli
nation, the Constitution of 1824 was of 1946 largely rescued the structure and
drawn up, the choice being that of a institutional design of 1934. From the
unitary state and a monarchical form21. 1950s onwards, Brazil entered a stage
After the fall of the monarchy, and the of economic modernization and greater
subsequent transformation of the regime industrialization, which took place amid
into a republic, the Constitution of 1891 particularly intense political and social
was promulgated22. this Constitution was conflicts. The impulse to modernize, and
heavily influenced by the 1787 Constitution the conflicts, accelerated after 1961, with
of the United States of America (with its widespread popular mobilization in the
federalism, bicameralism, Supreme Court early 1960s. In 1964, however, a civil-
with lifetime judges appointed by the military coup took place, the President of
President of the Republic and approved the Republic was removed, and power was
by the Senate). A Revolution broke out in usurped by the military (with the support of
Brazil in November 1930 which changed sectors of the political class and the business
the relationship between central power community). A considerable number of
and local leaderships and marked the political actors seem to have presumed that
beginning of a modernization project it would be just another of the occasional
which remained within the framework military interventions (along the lines of
of liberalism (combined with some those which had occurred in 1945, 1954
state intervention in the economy) and and 1955), and would be followed by the
democracy. The Constitution of 1934, rapid return of power to civilians. However,
drafted by a Constituent Assembly, was a as we know, this was not the case. The
political and legal document that sought military ruled Brazil for 21 uninterrupted
to confer durability and stability to this years. In that period, a new Constitution,
new state organization. But the troubled that of 1967, was soon amended by the
1930s still saw the emergence of a new Amendment Act of 1969 and was imposed
constitution. The democratic experience on the National Congress (already severely
came to an end with the self-coup unleashed mutilated by the removal of many members
by Getúlio Vargas with the support of of Parliament from office). Power was finally
sectors of the military. On the same day returned to civilians through an intricate
that the National Congress was declared process of political transition and re-
closed, a Constitution was also granted. democratization. A Constituent Assembly
Thus, on November 10, 1937, Brazil began was elected in 1986. The constituent work
to be governed by a Constitution imposed on it lasted from February 1, 1987 to October
by Vargas and, as one would expect, this 5, 1988, when the current Constitution was
Constitution also stipulated the leading promulgated23.
role of the Executive Power in the direction It Is clear how dense and multifaceted
of the country’s modernization process. Brazilian constitutional history has
In 1945, when the Vargas dictatorship been. There have been many constituent
ended, a Constituent Assembly was processes, much alternation between
elected. Representing a wide range of regimes, many situations of popular
political orientations, the Constitution mobilization and, also, of repression by
37Intersezioni
authoritarian governments. Constitutive the 1990s, there were processes involving
and constituent dynamics intertwine political transition all over Eastern
within this complex history, composing Europe25 and in South Africa26, to cite but
the fabric that determines the trends of two examples that have become emblematic,
the constitution-making processes. Even and are still extensively researched today.
the attributive force of time seems to stand After a few decades, it had become
out clearly from those events. Therefore, evident that these transitions were
an attempt at conjunctural approach to more complex than had previously been
Brazilian constitutional history would seem thought. Mere observation, classifica-
possible. In the following we would like tion and analysis of the different ways, in
to propose three analytical perspectives which some states have made the transi-
that seem to us, also in the light of recent tion from authoritarianism to democracy,
historiographical contributions, to be able is by no means sufficient. In reality it is
to open the field to a similar approach. clear that these transitions cannot sole-
ly be understood as temporal operators,
in the chronological sense of the term.
Throughout an ongoing transition, deci-
Transition and its historical significance sions are made, choises about the past are
explicitly made and new social and political
The concept of transition plays an configurations are formed. Such delibera-
important part in Brazilian constitutional tions, such choices, may be projected into
history, especially in cases of the changes later stages of the process of “passage” from
in the connection between law and politics one regime to the other. They may shape the
that occur when an old text is replaced by a new regime, delineate choices that will be-
new constitution. Indeed, as this article will come available to political actors; in short,
seek to demonstrate, the very concept of they may bind the future.
transition itself will require revision. Thus, there is no one time of transition.
Transition means a passage, a path of Rather, we could argue that there are several
connection, between one stage and another. times produced during any transition.
The field of “transitology” has emerged In Because of this complexity, we propose the
political science, devoted to investigating category of “ascriptive times” as a tool for
processes of change from dictatorships to observing transitional times, that is, the
democracy, highlighting Latin American projection, for post-transitional times, of
history in the second half of the Twentieth the effects of decisions made by political,
Century, during which time authoritarian social and, also, institutional actors during
regimes were replaced by democratic the transition processes. Such effects can
governments24. Needless to say, these be seen not only by the repercussions,
transitions occurred at different times in on the future, of resolutions made in the
each country of the region, and they also present of such transitions. They may also
had very diverse effects. Moreover, this be observed by the absence, that is, by the
phenomenon is not restricted to the South voices, demands, manifestations of social
American continent: for example, during groups which, although mobilized during
38Paixão, Meccarelli
the process of political transformation, list compiled by Schneider includes only
had no impact, no voice, in the decisions political amnesties. If the total number of
that led to the new regime27. Whenever amnesties granted is taken into account,
transitions are triggered, the political and notably those associated with reviewing
legal systems are affected differently. The the acts of removal of public officials or of
duration of political time is different from workers on strike, the total will be substan-
that of legal time. Transformations can tially higher. Indeed, in most constitutions
be faster in politics, while institutional adopted in Brazil, amnesty was granted to
structures can be resistant to change or political opponents (1934, 1946 and 1988)
adapt to them only gradually. Therefore, it or at least the possibility was discussed dur-
is of utmost importance to observe and take ing the work of drafting the document, as in
note of what kinds of constitutional reforms the Legislative and Constituent Assembly of
are required by transitional processes, as 182329.
well as how some of the pre-transitional Interestingly, as constitutions came
constitutional arrangements can persist and went one after the other, the dynamics
under democratic regimes. of amnesty became more complex. As
Some of the constitutions written shown by the accurate research undertaken
during transitions were written on the by Raphael Peixoto de Paula Marques,
basis of a political agreement or “pact.” To the effects of an attempt at a communist
what extent do such political agreements revolution, which took place in 1935, are
influence the content it was common still being felt today. This is why a legislative
to intervene in trade union boards and decree of 1961 provided an amnesty for the
to demand that the leaders comply with military who had committed themselves
national security rules”. to the movement, even permitting them
In some transitional cases, actors from to return to the armed forces. Following
the fallen political regime gain political the 1964 coup, the then ruling military
capital from influencing the constitutional resisted complying with the amnesty
provisions. How, then, does such influence decree, until it was replaced by a more
affect the transitional process per se, or the restrictive decree law in 1969 (which led
democratic credentials, of the new regime? to several demands that ended up being
As regards Brazilian Constitutional heard by the Federal Supreme Court). But
history, which is distinguished by its in- when the 1988 Constitution came into
tense processes of political transformation force, those affected by the 1969 decree
when alternating between regimes, the law were also granted amnesty. That means
study of transitions is crucial for research that the political amnesty established in
in this field. One reason for such an inter- the 1988 Constitution reaches back to an
est is the connection between transitions uprising in 193530. There are institutional
and an instrument that is found in Brazil- consequences to it: the Amnesty
ian political history: amnesty. In an exten- Commission set up to ensure enforcement
sive investigation, Ann M. Schneider finds of the provisions of the Constitution
38 norms that granted amnesty in Brazil- continues to operate today, with around
ian history between 1891 and 197928. The 9,000 applications still to be analyzed31.
39Intersezioni
And, as regards the current scenario, incompleteness and limitations of the
the political transition that took place, Brazilian transition, which is characterized
especially in the 1980s, remains a legal by conciliation, with no punishment for
and political issue. On October 5, 2018, the acts committed by agents of the regime33.
Constitution celebrated its 30th anniversary These brief notes highlight how the
at a real crossroads between past, present time of transition is a decisive time crucial
and future. for understanding the institutional history
The major issue relating to the pre- of countries such as Brazil. A careful
1988 period has to do with the legacy of approach to studying the situations and
the military regime. In its temporary constitutive factors in the constitution
clauses (art. 8), the Constitution states making process, even if detached from
that during the dictatorship “acts of constituent dynamics, still allows us to
exception” were perpetrated, that is, it consider its relevance at a deeper level.
clarifies that the fundamental elements of
the rule of law were violated. Nevertheless,
Brazilian courts have persistently ruled
for the validity of an amnesty law enacted Uses of the exception in constitutional history
– on the initiative of the regime – in 1979,
which precludes the opening of criminal There is an element that we must emphasize
proceedings to determine responsibility within Brazil’s extensive constitutional
of the dictatorship’s agents who have history. Among the constituent assemblies
perpetrated serious violations of jus cogens and constitutional documents that have
of international law in human rights. In been imposed, as well as in both transitions
the cases of the Araguaia guerrilla group and amnesties, one aspect seems to be
and the murder of journalist Vladimir ever-present in the Brazilian experience:
Herzog, the Inter-American Court for that of activating mechanisms of exception.
Human Rights found that Brazil had failed This is a classic theme within the
to provide an appropriate response to history and theory of the Constitution.
a continuing violation of human rights. The use, the duration, the consequences
Not even the enactment of the 1988 of the prescription of a situation of
Constitution has been able to remove the exception are variables, but the debates
authoritarian past32. have one important point in common:
As is well known, since January 2019 the what are the limits that should be set for
Brazilian federal government has been in those governments, that make use of such
the hands of a political group that expressed resources? What kind of developments can
its explicit endorsement of the acts of be achieved in connection with the rule of
torture carried out during the military law?
regime. Many authors involved in science It is well known that that was one
and political philosophy have attempted of the main controversies that defined
to assess the interplay of conditions that the Republic of Weimar. Article 48 of
has led to such a state of things. One the Constitution enacted in 1919, which
prevailing interpretation highlights the enabled the President of the Reich to
40Paixão, Meccarelli
suspend individual rights and guarantees, at the time. Its primary function was to
was used in several situations, most often facilitate the repression of several social
in the period before the Nazi Party34 forces that mobilized to vindicate their
took power. More recently, the debate rights37.
around “the exception” has returned But the collapse of the First Republic
to the surface in the US reaction to the did not mean the end of the use of emer-
September 11, 2001 attacks. How extensive gency measures. During the short time in
is the prerogative of the President of the which the 1934 Constitution was in force
United States, as commander-in-chief of (that was democratically drawn up by a
the armed forces, to restrain the exercise constituent assembly specially elected
of the rights of enemy combatants in the for this purpose38), the then President,
campaign against Iraq and Afghanistan? Getúlio Vargas, after he had neutralized
To what extent is it possible to appeal to the revolutionary movement that arose
Courts to seek a ruling that would be a in 1935 (mentioned above), decided to
restraint on presidential power? Since the create a National Security Court, clearly
establishment of the Guantánamo prison an “exception” Court, where defendants’
camp, this latter issue has taken on a central rights were reduced39. A state of siege was
role in US constitutional law. In successive also decreed. Interestingly, one expedi-
decisions, the Supreme Court, after the ent also used by Vargas was to extend the
division among the federal courts over the validity of the emergency measures: since
extent of presidential prerogative, ended up the 1934 Constitution had been restrictive
preventing several actions that were a real regarding the consequences of the decree
exacerbation of the presidential functions, of the state of siege (given the abusive use
such as the suspension of Habeas Corpus35. of the institute in the First Republic), Var-
Now it is time to look at the issue of gas searched for another way to suspend
exception in Brazilian constitutional the constitutional guarantees of the popu-
history. lation. His government launched a consti-
The 1891 Constitution, the first to be tutional reform that passed in a remarka-
enacted after the Proclamation of the bly short time (11 days), with some serious
Republic (which took place in 1889), procedural shortcomings, in order to allow
had a long lifespan, as it survived until it the suspension of guarantees through the
was replaced by the 1934 Constitution. decree of the state of war40.
However, particularly during the First In the post-war period, the issue of the
Republic period (which ended in 1930), state of siege again played a central role
it was routine for the executive branch to in Brazilian history, mainly during two
decree a state of siege. Of the ten politicians episodes of constitutional crisis. In the
who were presidents of the Republic troubled 1950s, which were marked not only
between 1891 and 1930, eight decreed a by the process of economic modernization,
state of siege. Over the entire period of the but also by a succession of political crises, a
First Republic (1889-1930), 2,365 days deadlock arose due to the attempt by sectors
were passed in a state of siege36. Thus, the of the armed forces to prevent, in 1955,
exception was almost a standard procedure the inauguration of Juscelino Kubitschek,
41Intersezioni
Parliamentary session that then established the 1988 Brazilian Constitution
who had been elected president that year. was central in the process of undermining
Within a few months, the National Congress his leadership role in the executive branch.
decided to remove two interim presidents Five months later, the government was
both of whom were close to the military overthrown by a coup42.
sector. After the second impediment, After the fall of João Goulart, the
the Acting President declared a state of military regime made extensive use of
siege, which served as a justification for exception mechanisms, from the so-called
the Supreme Court not to consider the “institutional acts”, repressive regulations
motivation for one of the impediments that were unilaterally decreed, and were
decided unilaterally by Congress41. In João neither submitted to the Congress, nor could
Goulart’s government, political tensions be scrutinized by the judiciary. Seventeen
resurfaced. It was a period of heightened institutional acts were issued between
action by social movements (students, 1964 and 1969, the first of which, nine days
workers, artistic class sectors) and, also, of after the coup d’état, imposed a series of
political polarization, which mirrored the punishments on civilians and the military,
Cold War context. In October 1963, after and removed several congressmen. The
declarations by his political opponent, second act, in 1965, dissolved the existing
Carlos Lacerda, who openly defended a political parties, creating bipartisanship,
coup d’état, João Goulart manifested his and extinguished the process of popular
willingness to decree a state of siege. But the election of the president of the Republic.
political conditions were no longer there. The No. 5 Act, of 1968, ordered the closing
Goulart backed down, however, the episode of the National Congress and inaugurated a
42Paixão, Meccarelli
violent cycle of persecution, torture, deaths The exception is an event that suspends the
and forced disappearances43. rule, and precisely for this reason, imposes
As the regime came to an end, another a mandatory change in considering the rule.
mechanism of exception was activated. To What we are observing – to return to
avoid the approval of a draft constitutional our issue, which consists of a problem
amendment that would have provided of interpretation of historical events
for the popular election of the President and experiences – leads us to consider
of the Republic, the latest of the General the experience of the exception as an
Presidents decreed “emergency measures” ascriptive time, even though different
in the Federal District, re-introducing from the transition: rather than preparing
censorship of the media, denying people proactive constraints that prejudice future
access to the urban perimeter, and constitutional arrangements, the exception
dissolving political meetings. The initiative contributes to determining the a priori from
turned out to be decisive for Congress to which it is possible to elaborate a project for
reject, in a first vote, the draft constitutional the future. In this sense, therefore, it can be
amendment44. investigated in its value as a constitutive
What is the overall significance of these factor in the constitution-making process.
experiences for the constituent process?
On the basis of modern legal culture, we
are used to thinking of the exception in an
exclusionary key, as something that does Mobilizing social actors: the right to strike
not belong to the legal order and even less
to its foundations45. The exception, in fact, One significant element – and a recurring
represents an area in which the political feature in Brazilian constitutional history –
dimension radically affirms its primacy is the emergence, in different contexts,
over the legal sphere; this is true in the of movements to mobilize segments of
case of the general category of the “state the population with a kind of constituent
of exception”, whether it is declined to impulse, i.e., demands that point to social
indicate a “state of the law” or an “empty inclusion and civic participation (by
legal space”46. pressure groups or collective entities formed
Philosophy, however, explains that at in an autonomous way). The organizational
the phenomenological level, the exception forms and agendas for vindication are quite
shows an evenemential character. It different; the task of the legal historian is
constitutes an event which, insofar as it is to identify and analyze them, and then to
a posteriori, escapes from the conceptual assess their importance within the broader
a priori, and implies a re-stipulation of framework of Brazilian constitutional
the a priori itself47. There is, therefore, history.
a relationship between event and It is a question here of focusing
hermeneutics, which allows us to discern on the dynamics we have defined as
a normative significance in the exception, constituent, where the distinctive element
that is, the consistency of a phenomenon is its constitutive potential rather than its
which contributes to determine norms. actual effect, or Impact, on framing the
43Intersezioni
constitutional order. These moments that narrowly, arguing that it had not been
we identify as constituent have their own regulated by law. Workers and unions, for
specific relevance, particularly if we are their part, continued to mobilize and call
interested in appreciating the conjunctural new strikes. During the period from 1961
background of a constitutional history, to 1964, exactly the time when activities
since they carry a specific attributive force in the public sphere, and among social
within the context of the constitution actors in the urban context, became more
making process. This specificity is relevant intense, and, as mentioned above, there
and important if one is to understand the was a significant increase in the number of
values and functions of constitutional strikes occurring, including a large series of
structures. political strikes50.
One of the key elements of mobilization With the 1964 coup, the disruption
is the use of strikes as a social practice. of the political process led, clearly, to a
Throughout the Republican period, trade decrease in the numbers of work stoppages.
unions and workers’ associations generated In fact, the regime, aware of the power of the
mobilizations that assumed the form of a demands of strikes, issued a legal act shortly
strike, and this inevitably led to repression after assuming power. The procedures
by police and military forces. First of all, required, foreseen by the act, in order to
we must emphasize the vitality of the strike initiate strikes were complex and slow;
as a form of claim, even when there was no state control was permanent; and, there
legal provision regulating the stoppage of were countless constraints on essential
services in place. In the early days of the activities. Furthermore, the act introduced
First Republic, the Criminal Code of 1890, various crimes against the organization of
in its original version, included the strike as work, including “promoting, participating
a crime committed against the organization in or inflating strikes or lock-outs in breach
of work. Nevertheless, at the time of the of this act”. The penalty was imprisonment
vacatio legis of the Code, a decree amended from six months to one year and a fine.
the original drafting of the article and For a recidivism, the penalty was doubled.
kept violence during a strike, as criminal Not by chance did the act become known
conduct48. The right to strike, nonetheless, among workers, as an “anti-strike act”,
was not ruled by any legal norm. However, as in practice it made it impossible for
this did not prevent numerous strikes from virtually all kinds of stoppages to take place.
being triggered, including a general strike To further restrict an already very strict
in July 1917, which was widely adhered to in regime, the 1967 Constitution prohibited
cities such as São Paulo, Campinas, Curitiba strikes in essential activities and public
and Porto Alegre49. services. For its part, Decree-Law 314/1967
One interesting paradox emerged established that “Promoting a strike or
between the 1940s and the mid-1960s. lock-out that leads to the paralysis of
Brazilian courts, including the Federal public services or of essential activities,
Supreme Court, began to interpret the with the purpose of coercion of any of the
provision of the 1946 Constitution that Powers of the Republic” was a crime against
established the right to strike more national security, which was punishable
44Paixão, Meccarelli
by two to six years of imprisonment51. universe of mobilization of workers. In
There were strikes, in industrial towns 1979, 26 professional categories went on
(Osasco and Contagem) in 1968, but these strike in 15 states52. In total, there were
were violently repressed by the military 3,207,994 workers on strike. In 1980, the
government. The trade unions, which had number of striking workers decreased to
already been severely affected by arrests 664,700, which could be explained by a
and persecutions, entered a period of near few factors: worsening of the economic cri-
inactivity. This scenario would change, sis, increased unemployment, and, greater
nevertheless, in the late 1970s. mobilization of the repressive structures53.
After May 1978, workers from several The period between 1978 and 1980 is
automotive enterprises unleashed a wave marked by the convergence of several agen-
of strikes. These industries were located in das of social movements, and strikes played
towns near São Paulo, in an area called the an important role in this context, which
ABCD - Santo André, São Bernardo, São was, however, broader.
Caetano and Diadema. This was an intense One of the key points of the ABCD
and remarkable movement. The figures are strikes was the horizontal articulation
impressive: in a nine-week period, from of the workers, i.e. mobilization,
May 12 to July 13, 1978, 213 plants from nine independent and outside of the union
cities were recorded as being on strike (as boards and, in some cases, contrary to
well as the ABCD, there were shutdowns in the guidance of the labor hierarchy. This
São Paulo, Osasco, Jandira, Taboão da Serra, led to an internal struggle in workes
Cotia and Campinas). Overall, 245,935 representation; as well as fighting with
workers went on strike. If we consider the the entrepreneurs, it was also essential
1978 data for all Brazil, the results are as to change the internal structures of
follows: fourteen professional categories professional unions themselves. As a
went on strike, in seven states and there result, the workers had to convince their
were 539,037 workers on strike in that year. coworkers (in union assemblies and
The 1979 and 1980s wage campaigns elections) that the leaders traditionally
were also shaped by collective conflicts, associated with the government did not
strikes, assemblies, repression, inter- represent them. In short, that they had to
vention and the protagonism of workers. fight for internal democracy too.
There were some differences between these The workers and, gradually, the more
strikes and the spontaneity of those in 1978: combative unions as well as other social
firstly, the strikes were prepared with more movements intensified the struggle
careful, more strategically. Simultaneous- against the dictatorship. As stated by
ly, the repression itself became more so- Maria Helena Moreira Alves, “1979 was a
phisticated: it was common to intervene in decisive year for the opposition as a whole”.
union boards and to demand that leaders During the most intense phase of the 1979
complied with national security rules and strikes, “a functional network of alliances
norms. If one compares the 1979 and 1980 was established between the grassroots
data with those already mentioned from organizations, the social movements linked
1978, one can observe an expansion of the to the Church (including the CEBs) and
45Intersezioni
the unions”54. We should also mention strike; rulings by the courts oscillated
the work done by the Brazilian Committee wildly and still do so, as regards the extent
for Amnesty, a group that emerged from and the scope of the right, in a dispute that
the demands of relatives of opponents is still wide open58.
to the military regime, who were exiled This reconstruction in which strikes take
for reasons of political persecution, but place offers an important insight. When we
whose return was considered to be crucial speak of social or political mobilizations,
for the re-democratization of the country. we refer to very different phenomena: we
And, finally, we can add the support of are thinking about political subjects, the
intellectuals, liberal professionals and dynamics of their institutionalization,
members from the political opposition, the social facts that have the tendency to
and with this it will be possible to grasp the insert demands for legal protection into a
breadth of social and political mobilizations wider programmatic framework; but the
that accompanied and dialogued with phenomena of a more spontaneous nature
the striking workers. With this whole are also important for our discourse, even
dimension of the battle for citizenship, a though they are by no means part of a process
phenomenon of “overflowing” the agenda of institutionalizing political dynamics or
of workers and union entities is clear: the even when they are not part of a broader
struggle for democracy and freedom was political program. As for our problem, which
also at stake55. is to understand the conjunctural basis of the
Not surprisingly, the right to strike constitution-making process, which would
was given a special place in the 1988 seem to be very useful to throw more light on
Constitution, in the realm of social rights. the complexity of the constituent dynamics;
The 1987-88 constituent, for that matter, they are the bearers of a design impulse, but
adopted an interesting approach. Article they can and must be rediscovered in all
9 of the Constitution acknowledges the their multi-directionality.
right to strike, “ it being the competence
of the workers to decide on the advisability
of exercising it and on the interests to be
defended thereby”56. This constitutional Concluding remarks: constitutional history,
rule allows the workers themselves to transitions, and crisis
decide on the extent of the action they want
to trigger. In other words, the agenda, form, We have sought to demonstrate how
moment and terms of the demands belong ascriptive temporal categories, which
to the workers, who can also be understood contain both constituent and constitutive
as “collective legal subjects”57. As one might dynamics, can be useful analytical tools for
expect, such a semantic shift in the right to an in-depth reading of the constitution-
strike under the 1988 Constitution would making process. This also allows us to
not have been automatically assimilated develop a critical point of view regarding
by the agencies in charge of resolving the present-day.
collective conflicts. A repressive memory In the context of concrete experiences
had been built up regarding the right to like those that have shaped Brazilian
46Paixão, Meccarelli
constitutional history, attributive temporal Even as the concluding lines of this article
conditions has served to reveal a twofold were being drafted, massive street protests
face. These temporal conditions are were taking place in two South American
inextricably linked to the incandescence countries: Ecuador60 and Chile61. In
of ongoing political processes, however, Bolivia62, on the other hand, there were
they, contemporaneously, maintain their articulations between the armed forces
own autonomy, in that they constitute a and the police that led to the resignation
conditioning factor for the political process of the President of the Republic, which was
itself. followed by huge street protests. In these
It is essential to note, though, that le- three countries, measures of exception
gal time is not the same as political time. have been adopted in an attempt to contain
This is an evolutionary achievement of the the protests. In all of them there have been
form of functional differentiation, which fatalities.
is characteristic of modernity, and is re- From the second decade of the 21st cen-
lated to the invention of the constitution as tury onwards, a series of threats to demo-
a form. Obviously, there will be repercus- cratic constitutionalism is discernible un-
sions in the law on changes and disruptions der the perspective of global history. Some
in the political system, but such repercus- political discourses that have eventually
sions will by no means be causal, immediate been given names such as “new populism”,
or automatic. This will depend on various “sovereignisms” or “digital populism”
mediations, and a major one is, precisely, arouse a degree of uncertainty for the fu-
the constitution itself (and its autonomy ture of contemporary democracies. The
under the law). This is, in fact, one of the emergence of anti-global extreme right
prerequisites of modern democracy: keep- organizations, the massive use of technol-
ing a minimum degree of separation be- ogies and social networks as influencing
tween law and politics59. factors in elections and referenda and, in
For this very reason, a political crisis some cases, the institutional transforma-
does not necessarily mean a legal crisis. tion of some communities are elements
When constructing constitutional history, that together call into question the frame-
that is one point that must be considered. work of post-war democratic constitution-
Certain political crises may acquire an alism. Examples of countries that are ex-
institutional dimension that will affect the periencing these uncertainties to varying
legal system. Others may be resolved within degrees, are: Hungary, Poland, Italy, the
the political system itself. United Kingdom63.
This same reasoning also applies Meanwhile, Brazil has been experiencing
to constitutional history from a global a constitutional crisis since 2016, when an
historical perspective. Crises may erupt impeachment process was initiated against
to varying degrees, also, the relationship the then President of the Republic without
between politics and law may differ any demonstration of the existence of a
considerably from country to country. crime of responsibility64. Such a state of
2019 is a particularly troubled year in crisis intensified when in 2018 a candidate,
the political context of South America. who expresses views that are fundamentally
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