—Juliano Zaiden Benvindo, University of Brasília
Ran Hirschl, in his book Towards Juristocracy, raises a very thorough argument on how political, economic, and judicial elites have strategically used Supreme Courts as “a form of self-interested hegemonic preservation.” As a way of keeping many of their interests virtually untouched for years, especially in democratic and pluralistic environments where changes in the political spectrum can routinely occur based on majority decision-making, Supreme Courts are seen as a necessary tool for fending off more radical attacks on those interests. This preservationist movement is however expressed in different forms. For instance, elites can make use of a temporary gap in democratic accountability to rapidly advance agendas that would otherwise prove challenging. And, like Supreme Courts, a viable long-lasting avenue for doing so is through constitutional amendment.
Paradoxically as it may seem, since constitutional amendments normally require supermajority, moments of political and economic crisis can become the perfect scenario to transform what should be a process of democratic debate into herd behavior that can more easily lead to constitutional change. Brazil, which recently had its President Dilma Roussef impeached amid political turmoil, is now going through a moment where there is momentum for rapid constitutional change without democratic accountability. Some of these changes appear to respond to a preservationist strategy, and therefore may weaken politics for a long period of time.
Among the many announced changes, such as in labor and social security rights, a particular constitutional amendment stands out. As a mechanism to control increasing public spending, President Michel Temer’s government has pushed for the approval of the Proposal for Constitutional Amendment n. 241/2016, which will sharply curb annual growth of public spending by adjusting it only to the previous year’s inflation rate during a period of twenty years. This proposal, which launches the so-called “New Fiscal Regime,” was approved by a large majority in the House of Representatives on October 25th and is now pending deliberation in the Senate.
The controversy over the effectiveness of such a measure to reverse the economic deterioration has gained momentum, and, in some cases, reflected the previous divide in society between those who see in the new government a temporary pathway to advance some agendas that were stuck during President Roussef’s government and those who condemn the new government as illegitimate. Many pundits have praised the new measure, and the government has sustained that it restores confidence in Brazil that will translate into sustainable public policies. Others have fiercely manifested opposition to it.
A group of distinguished economists, for example, published a document arguing that this constitutional amendment will strongly affect social rights, especially heath, education, and social welfare, while not helping to restore economic growth. Marcus Faro de Castro, a professor of economic law at the University of Brasília, argued that this proposal adopts macroeconomic policies that “in practice (…) become political expediencies as far as they are perceived as effective by those who benefit from them, and not because they demonstrably embody ideals of justice that society aims to achieve.” The Economist, which acknowledges that “austerity could have distributional consequences” and “has been a misguided approach in recent years”, points out that Brazil is a “special case” that may however justify it. But it does so not without first titling the article “there is more than one kind of economic mess to be in.” 
Beneath this controversy, however, lies a more structural constitutional discussion. First, somewhat recalling the clash between Jeffersonian and Madisonian conceptions of constitutionalism, the question of whether a constitutional amendment can bind the future in a way that places such a significant constraint on public spending, thereby affecting how politics takes place, is naturally central. Ideally, all sectors and social needs would maintain their shares of the budget over time. But in practice, it seems inevitable that politics will evolve in a way that those groups with greater competitive pressure will get the largest share of what is now a fixed budgetary pie.
History suggests that social rights are usually the most harmed in such circumstances. It is no wonder that scholars have stressed how this amendment will signal a “change in the Brazilian social contract” as it was originally drafted in the Constitution of 1988, a document originated from a broad social participation and wherein social rights have best represented the marriage of that constitutional moment with a new democratic impetus after years of dictatorship. Moreover, in a political landscape characterized by a president whose legitimacy is clearly disputable and a Congress whose fragmentation is dramatic, one could argue that there is a “democratic deficit” in such a proposal. Especially when a proposal that will bind so strongly the future and affect how Brazilians will enjoy their freedoms was not previously subject for public debate, but rather imposed from top-down, its legitimacy is obviously tainted.
Yet, as a preservationist move from political elites, this proposal may prove successful. Following an environment of crisis in which democratic accountability has seemed to become less important, these elites will use an unelected president and herd behavior in parliament to inscribe in the constitution the very denial of politics for a period of twenty years. As Marcos Nobre, a professor of political philosophy at the Campinas State University, points out, this proposal “places under suspicion the capacity of the political system to run the country” and is the immediate effect of an antipolitical sentiment that is common in such turbulent times. In this context, elites have a special ability to co-opt society and to advance agendas that prove durable despite changes in the political spectrum.
Constitutional amendment is one such strategy, and, in the case of the Brazilian Constitution, a way to revamp a constitution that, for many of those groups, seems excessively benevolent towards its people. The historical struggle between the democratic spirit of the constitution and the stubborn attempts to limit its achievements has gained a new momentum. The future is obviously unknown and the prospects seem discouraging, although preservationist movements as such can, at least temporarily, provide some stability and improved economic indicators in the aftermath of a period of crisis. But it may achieve this by jeopardizing democratic accountability. There is hope, however, and it lies in the fact that Brazilian democracy has historically proved capable of continuously reinventing itself despite its many setbacks. May it be so again.
Suggested citation: Juliano Zaiden Benvindo, Preservationist Constitutional Amendments and the Rise of Antipolitics in Brazil, Int’l J. Const. L. Blog, Oct. 26, 2016, at: http://www.iconnectblog.com/2016/10/preservationist-constitutional-amendments-and-the-ris-of-antipolitics-in-brazil/
 Ran Hirschl. Towards Juristocracy : The Origins and Consequences of the New Constitutionalism, Cambridge, Mass.: Harvard University Press, 2004.
 See Jon Elster. “Forces and Mechanisms in the Constitution-Making Process.” Duke Law Journal 45 (1995): 370 (arguing that “by and large, owever, the link between crisis and constitution-making is quite robust).
 See Em pronuniamento na TV, Temer defende reformas da Previdência e Trabalhista, UOL (Aug 31, 2016, 8:19PM), http://noticias.uol.com.br/politica/ultimas-noticias/2016/08/31/em-pronunciamento-a-tv-temer-defende-reformas-da-previdencia-e-trabalhista.htm
 According to the proposal, this methodology for adjusting the public spending can be revised after a period of ten years (art. 103).
 See Armando Castelar Pinheiro, “Por que Sim à PEC 241”, Valor Econômico (Oct. 7, 2016, 5:00AM), http://www.valor.com.br/opiniao/4737903/por-que-sim-pec-241; “PEC do teto não é ótima, mas é o possível neste momento”, EXAME (Oct. 8, 2016, 6:00AM), http://exame.abril.com.br/economia/noticias/pec-do-teto-nao-e-otima-mas-e-o-possivel-neste-momento
 See “Temer: public policies are unsustainable without spending control”, BrazilGovNews (Sep. 30, 2016, 3:22 PM), http://www.brazilgovnews.gov.br/news/2016/09/temer-public-policies-are-unsustainable-without-spending-control
 See “Economistas lançam documento com críticas à PEC dos gastos púlbicos”, Valor Econômico (Oct. 10, 2016, 10:00PM), http://www.valor.com.br/politica/4740633/economistas-lancam-documento-com-criticas-pec-dos-gastos-publicos.
 Marcos Faro de Castro, “A PEC 241 e os Juristas Direito-Economia-Sociedade, (Oct. 12, 2016), https://economialegal.wordpress.com/2016/10/12/a-pec-241-e-os-juristas/
 “Brazil and the new old normal: There is more than one kind of economic mess to be in”, The Economist (Oct. 12, 2016, 8:11PM), http://www.economist.com/blogs/freeexchange/2016/10/brazil-and-new-old-normal
 See Stephen Holmes. Passions and Constraint: on the Theory of Liberal Democracy, Chicago: University of Chicago Press, 1995, p. 134-177.
 Flávio Marques Prol, “PEC 241: Levando Justificativas a Sério”, JOTA (Oct. 10, 2016), http://jota.uol.com.br/pec-241-levando-justificativas-serio
 See Leonardo Augusto de Andrade Barbosa. História Constitucional Brasileira: Mudança Constitucional, Autoritarismo E Democracia No Brasil Pós-1964, Brasília: Biblioteca Digital da Câmara dos Deputados, 2012.
 Today, the Brazilian Parliament has 27 parties and is the international leader in number of parties. See Mariana Schreiber, “Brasil lidera índice internacional em números de partidos – o que isso significa para a crise?” BBC Brasil (Jun. 29, 2016), http://www.bbc.com/portuguese/brasil-36627957
 See Gabriela Rondon, “O déficit democrático da PEC 241”, JOTA (Oct. 14, 2016), http://jota.uol.com.br/o-deficit-democratico-da-pec-241?utm_source=Newsletter&utm_campaign=Acesso%20Newsletter%2014-10
 See Marcos Faro de Castro, supra note 9.
 See id.
 See Marcos Nobre, “O Preço da PEC”, Valor Econômico (Oct. 10, 2016, 5:00AM), http://www.valor.com.br//politica/4739615/o-preco-da-pec