[Editor’s Note: This is the third entry in our symposium on the “30th Anniversary of the Brazilian Constitution.” The introduction to the symposium is available here.]
—Marcelo Labanca Correa de Araujo, Catholic University of Pernambuco
The historical formation of the Brazilian State has much to do with processes of centralization and political-territorial decentralization. Initially, as a colony of Portugal during the sixteenth to nineteenth centuries, Brazilian territory was divided into hereditary captaincies that were nothing more than a territorial division of power administration. Even in the colonial period, the tension between the rules of the Portuguese crown and the clamor for more local autonomy led to the emergence of revolutionary movements considered by many as “Republicans” but which, in fact, also had federalist aims. For example, the Pernambuco Revolution of 1817, which for a short period of almost three months expelled the Portuguese from a part of the Brazilian territory, formed a republican government. Based on a fundamental organic law, it established the separation of powers and provided for rights and guarantees such as freedom of the press and the irremovability of judges. The revolution of 1817 had a flag with three stars representing the States of Pernambuco, Paraiba and Rio Grande do Norte, as a kind of recognition of the idea of union in diversity.
Even when Brazil became independent of Portugal, inaugurating the monarchy represented by Emperors Pedro I and Pedro II, the unitary state that existed (centralized, of course) also coexisted with the existence of subnational entities that grouped power in populations. The first Brazilian constitution (which dates back to 1824) set out provinces as an element of the territorial distribution of political administration (although lacking in autonomy). These territorial subdivisions suggest that gradually a sense of belonging to the people who inhabited the provinces of each subnational entity had been forming. People from the provinces nowadays called Pernambuco, Rio de Janeiro, São Paulo and other subnational entities recognized themselves as members of the same group and also as different from the inhabitants of other provinces, creating the human element that in the future would give support for the formation of states. Thus, if it is true that federalism is not the same as a federal state (which would be its “constitutionalization”), it is also true that Brazilian federalism did not expect to be formalized by a constitutional text. In fact, there are many examples of processes that were directed towards a federalist path even when the unitary monarchical state was still in force.
Once the monarchy ended in 1889, the United States of Brazil was officially established and, two years later, the first constitution officially inaugurated the federal period. The fact that the Brazilian federation was officially created by reason of the dissolution of the unitary state cannot be a motive to classify our federalism as “segregation” or “centrifugal” (which arises because of the dissolution of the unitary state), unlike what happened in The United States, where an “aggregate” or “centripetal” federalism took place (in this case, several former colonies that renounced their sovereignties united and formed a single federal state). This affirmation disregards that there was, even in the Brazilian colonial and monarchical era, a factual basis for territorial division, regional inequalities and the existence of federalist processes in gestation.
Brazil has had seven constitutions (1824, 1891, 1934, 1937, 1946, 1967 and 1988). Except for the first, all the others retained the form of a federal state. Sometimes with less, sometime with more centralization, but always with a strong federal government presence in a centralizing process. Currently, the Brazilian Constitution, promulgated on October 5, 1988, maintains the Brazilian federal model with the existence of 26 member-states and one federal district. The political-administrative organization features three spheres with constitutional and political-administrative powers: the federal government, the states, and the municipalities.
The federalism of 1988 is thus considered a three-dimensional federalism. The granting of political autonomy to the municipalities meant that they were considered a third sphere of Brazilian political organization, although, unlike the federal and state branches, the municipality has only executive and legislative powers (there is no judicial power). Additionally, each municipality has its own organic law, rather than a constitution. Also at the constitutional normative level, it is important to point out that the 1988 Constitution adopted the two main models of the distribution of powers: that of dual federalism (with exclusive powers for the federal government and remaining or reserved ones for the states, whose reference is the American 10th Amendment), but also the model of shared competences of cooperative federalism in case of common matters granted to the different spheres.
For instance, the power to legislate on criminal law is exercised at the federal level. Only Congress can elaborate on criminal law. On health and education, the Union, states and municipalities can draw up legislation, but it is up to the federal government to define the general rules .” Naturally, considering the existence of multiple constitutional legislative powers, asymmetries in the production of the law at the state and municipal levels would be natural. However, in Brazil, the Supreme Court adopts a very particular understanding of such symmetries and asymmetries, which means that Brazilian federalism is also very much dependent on Supreme Court’s precedent. There is an intense process of “judicialization” of federalism that has the Supreme Court as a main actor:
On such asymmetries, it is worth mentioning that they can be de jure asymmetries (the degree of autonomy and free normative design some states can or not exercise) or de facto asymmetries (the differences among states concerning geographical design, population, wealth, etc.). Of course, states differ on the number of their population and on their wealth. The southernmost states of the country, such as Paraná, São Paulo or Rio de Janeiro, for example, are richer and more populous than the northern states, such as Amazonas and Ceará. On the other hand, there are symmetries (the same language is spoken throughout the country) and the cultural differences, though existing, are not great enough to spark internal conflicts. Those are de facto questions.
As for de jure asymmetries, the Supreme Court has interpreted Brazilian federalism according to the so-called “principle of symmetry.” This principle is undoubtedly a factor for not federalizing the country. The Supreme Court understands that Brazilian states must follow the same legal model as that existing one in the Federal government, notably the organization of powers. The Court, therefore, ends up stifling the autonomy of Brazilian states, forbidding the legislative branches from any sort of experimentalism or creative solutions to solve regional problems. For instance, the Supreme Court has declared unconstitutional a state law that created external control over the state judiciary, based on the absence of such control at the federal level (ADI’s 98/MT e 183/MT).
Therefore, the thirty years of post-1988 federalism are essentially marked by the judiciary’s central role in defining the scope of state autonomy, a movement that some have called “supremocracy”. This significantly interferes with the dynamics of basic rights promotion at the subnational level. For example, a law from the state of São Paulo set out administrative punishments for companies that require a job certification for women as a way to avoid gender discrimination. The Supreme Court ruled that such law was unconstitutional because it violated the federal power to legislate on labor law (ADI 3165-SP). Another interesting example is the ADI 3852 from the state of Santa Catarina: a state law prevented the local commercialization and storage of agricultural products before the misuse of pesticides. The Brazilian Supreme Court held that the state restriction, even though aimed at protecting individual health, violated the Federal power to legislate on interstate commerce. Therefore, there are no decentralizing trends in Brazil when it comes to promoting fundamental rights. Quite the opposite: by stressing centralization as its mindset, the Supreme Court has continuously denied several rights that could be otherwise exercised at the subnational level. Brazilian federalism, therefore, reaches its thirtieth anniversary with the feeling that it has not really been a reality and that a centralizing structure has prevented its full development.
Suggested citation: Marcelo Labanca Correa de Araujo, Brazilian Federalism and Asymmetries on the 30th Anniversary of the 1988 Constitution, Int’l J. Const. L. Blog, Oct. 13, 2018, at: http://www.iconnectblog.com/2018/10/brazilian-federalism-and-asymmetries-on-the-30th-anniversary-of-the-1988-constitution/
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