—Thomas da Rosa Bustamante, Emilio Peluso Neder Meyer, Marcelo Andrade Cattoni de Oliveira, Federal University of Minas Gerais; Jane Reis Gonçalves Pereira, Rio de Janeiro State University; Juliano Zaiden Benvindo and Cristiano Paixão, University of Brasília
In a provocative piece that was first published in Portuguese and then in an English version on ICONnect, Professor Bruce Ackerman not only suggests the need for a new Brazilian constituent assembly, but also sets a date for it: 2023. His first words are strong: “Brazil needs a new Constitution,” a statement that is visibly an invitation for further discussions. His arguments are largely based on specific facts of the Constituent Assembly that resulted in the 1988 Brazilian Constitution, the most democratic ever in the history of the country, and the developments thereafter. His central claim is that “increasing numbers of Brazilians are losing faith in the system established in 1989”, and thereby “the best way to respond to escalating political alienation is to convene a new Constituent Assembly in 2023.” What could sound logical and plausible given the current political crisis catalyzed by Bolsonaro’s disastrous presidency – let alone the economic and health tragedy due to COVID-19 – is, however, made more nuanced and challenged by key facts of Brazilian constitutional history, longstanding discussions of Brazil’s constitutional identity, and cost-benefit analyses. This response aims to address some of those variables. We argue that the Brazilian situation, although extremely problematic, is not likely to be changed for the better with a new constitution.
Professor Ackerman assumes from the outset that the 1988 constitutional project has failed, and that “key decisions by the Assembly of 1988” laid the groundwork for the current public confidence crisis. He offers a historical recollection of events during the Constituent Assembly of 1987-1988, classifies the 1988 Constitution as a “compromise constitution,” describes some of the successive and mostly successful presidencies, depicts an assumed “popular demoralization” in 2020, and even proposes that the “Constituent Assembly of 2023” should adopt a parliamentary system. In this subject matter, Ackerman follows his long defense of “constrained parliamentarism” as a “more promising path to constitutional development” than presidentialism.
Yet, there are some serious difficulties in the claim that Brazil’s 1988 constitutional project has failed. Although Professor Ackerman acknowledges the relevance of various social movements during the Constituent Assembly, the emphasis on the negative dimension of compromises during that moment seems to follow a tradition of political scientists, especially from the 1980-1990s, who depicted the 1988 Constitution as a typical compromise constitution, also arguing in favor of parliamentarism. However, current historiographic studies have pointed out that the emphasis on compromises and bargains is very partial and simplify that constitutional moment to a large extent. Such studies prompt, at least, two caveats. First, compromises are not necessarily problematic for constitutional legitimacy and they can even engender constitutional stability and resilience. Second, the 1988 Constitution carries a history of democratic engagement that goes way beyond that specific constitutional moment. Though the Constituent Assembly took place between February 1, 1987 and October 5, 1988, the drafting of the Constitution, from different angles, is much longer and is anchored in the expressive effort by Brazilian society to overcome the military dictatorship (1964-1985).
Already at the end of the 1960s, signs of resistance to the regime began to emerge, which associated re-democratization with the enactment of a new constitution. This connection became clear in the Charter of Recife, a document adopted by the only authorized opposition party (MDB). In 1971, this political party requested the return of democracy with the call for a constituent assembly. From 1977 onwards this demand began to take hold in different segments of society, such as the Brazilian Bar Association, union leaders (particularly metalworkers and bank employees), church organizations and neighborhood associations, among many others.
The year 1984 witnessed a major mobilization for the approval of popular elections for the presidency of the republic, which gathered several members of the political class and a vast number of sectors of society. The draft amendment was rejected by a narrow majority in Congress. Three years later, the National Constituent Assembly met and decided to draft the Constitution without adopting a preliminary draft prepared by a “commission of experts”. By dividing itself into eight thematic committees and twenty-four subcommittees, this assembly was able to open debates with those segments that had already been pushing for democratization. Women’s movement, indigenous peoples, the unified black movement, trade union representatives, groups of physicians and health professionals, among many others, filled the halls and session rooms amidst public hearings and amendment discussions. From this inclusive and participatory process emerged the constitution enacted in 1988.
The history of the constituent process is therefore much longer than the length of the proceedings of the 1987-1988 Assembly. This expanded time was produced by a society that had endured arbitrariness and persevered on the way to democracy. Such aspiration, marked by a rights-building agenda in favor of equality and freedom, subsists in today’s society, which is very different from that of the 1970s-1980s. It also aims, in a majoritarian sense, to reduce inequality, eliminate poverty and put an end to all forms of discrimination. This is not, therefore, simply a matter of constitutional design whose bargains resulted in the compromised solution for presidentialism at the time, with a plebiscite on the matter scheduled for 1993. Beneath such disputes, there was a growing impulse for democracy, which largely reflected on that moment. The reason for the 1988 Constitution’s validity and legitimacy is precisely its democratic and inclusive character.
Although it is true that Brazil has endured some serious political crises since 1988, it would be misleading to overlook the fact that it has since also experienced a reasonable alternation in the control of the executive branch with regular elections and growing institutional accountability. The Constitution has lived up to various challenges – it provided, for instance, the institutional framework that enabled, in the years 1995-2002 (during the presidency of Fernando Henrique Cardoso), for the enactment of constitutional amendments that transformed key aspects of the economy and public administration in order to introduce free-market reforms while curtailing the state’s presence in some economic and social areas. In the years from 2003 to 2016 (the presidencies of Lula and Dilma Rousseff), the Constitution allowed changes on inclusive social policies, such as the expansion of social rights and the minimum wage valuation policy. Thus, the 1988 Constitution provides a sufficient level of openness to support the institutional balance necessary for a contemporary democracy. Moreover, the 1988 Constitution is rather flexible (but features wide-ranging unamendable clauses), inclusive and detail-oriented, which might help explain why it has endured “significantly longer” than most Latin American constitutions.
Despite the unrest the country has experienced since 2016, with President Rousseff’s impeachment and later the election of Jair Bolsonaro as President, there is no reason to conclude that the current events imply the twilight of the 1988 Constitution. The crisis is surely a warning sign, a vivid reminder that constitutional texts, no matter whether they were drafted to last forever or for a long time, are not immune to de-constituent movements. The constitutional framework is still in place, but in motion. Its meaning is also defined historically, through disputes, interpretations, uses and appropriations.
Therefore, the way out of the current critical moment is not by convening a new constituent assembly and drafting a new constitution which would adopt parliamentarism. Even though constitutional design matters a great deal, it is misleading to overlook the legitimacy that the 1988 Constitution has achieved over the years of democratic life, which is unique in the Brazilian history. The assumption that the some “key decisions” on constitutional design would have “generated the current crisis of public confidence” and that the 1988 Constitution is demoralized in the eyes of the people not only reduces the complexity of such a relationship between a people and the very meaning of constitutionalism but lacks empirical support. Events that appear to be symptoms of a constitutional crisis may be due not to the singularities of the 1988 Constitution, but to the longstanding deficit of confidence in the rule of law caused by centuries of constitutional instability. Despite undeniable progress in recent decades, the reality is that Brazilian constitutional history is marked by the difficulty in managing crises within consensual guidelines. The constitution is often taken as a hurdle to overcome, and not as a foundation that has the autonomous value of transcending circumstances.
Ackerman’s argument that parliamentarism is more equipped to avoid authoritarian backsliding is based on some relevant recent empirical research and his new book Revolutionary Constitutions. This is nonetheless a very disputed claim.  Professor Ackerman, who developed the concept of ”constitutional moments” certainly agrees that constitutions are not only made of technical recommendations, but are (or should be) mainly the result of democratic procedures and consensuses. If we epitomize the 1988 Constitution as a ‘compromise constitution’ without acknowledging it as a ‘citizenry constitution’ – as the President of the Constituent Assembly of 1987-1988, Ulysses Guimarães, dubbed it -, we will miss one of its most important moral and political features.  Not to mention that it is still an open question why parliamentarism would be a better answer to polarization in politics. An extreme constitutional decision such as Brexit took place in the birthplace of parliamentarism and in the context of extremely polarized politics. By the same token, it was inside a parliamentary system that Hitler came to power. So, it seems to be the case that democratic resistance to authoritarianism is not only a matter of constitutional design, as Hungary and Poland currently suggest.
The constitutional choice for the presidential system of government was, in fact, part of this democratic demand. Although the dispute during the Constituent Assembly of 1987-1988 was fierce, as Professor Ackerman correctly perceives it, the context was more intricate. Some leading left-leaning parties such as the Worker’s Party (PT) and Democratic Labor Party (PDT) supported presidentialism. It was not only a center or center-right agenda. Parliamentarism was not a demand from those popular movements for democracy. It was mostly a demand from one wing of the majority party in the Assembly (PMDB). After the decision in favor of presidentialism, that wing of PMDB created the Brazilian Social Democratic Party (PSDB). Although such a proposal advanced well during the Constituent Assembly, it was not consensual at all, and this resulted in the compromised solution for presidentialism and a plebiscite five years later. Parliamentarism was rejected, among other reasons, because it could become an elitist political system. In other words, the procedure transformed a compromised solution into a democratic answer – a pattern of the 1988 Constitution. If we turn to Brazil’s political history, we observe that, in 1961-1963, parliamentarism was imposed on the 1946 Constitution so that elites and the military could ‘accept’ João Goulart in the presidency. This parliamentary solution was rejected in a plebiscite in 1963 by 82% of the population. And, again, with the enactment of the 1988 Constitution, the plebiscite of 1993, even despite President Collor‘s impeachment, reaffirmed the popular rejection to parliamentarism: 69.20% of the population opted for the presidential system.
If the 1988 Constitution faces challenges, they certainly cannot be resolved by shortcuts. It is very likely that another constituent process, in the current populist moment that has emerged in Brazil and in many other countries, would not be able to restore the impaired faith in the rule of law. Moreover, it may create dynamics of a zero-sum game. Replacing a democratic constitution is – and should be – a costly and high-risk endeavor, even more so in moments of crisis and high political polarization. This is certainly not the most rational moment to replace a constitution when consensus is highly unlikely and undemocratic movements are popping up on a regular basis in the country.
More valuable than undertaking experiments with institutional design would be rebuilding the ethos of fidelity to the rule of law, which was severely undermined in recent episodes such as the controversial impeachment of President Dilma Rousseff, the growing judicial activism and interference in mainstream political matters, the absence of effective transitional justice measures, the deprivation of socio-economic rights and the rights of political minorities, and the inability to impose civilian control over the military, just to mention a few. Despite the political crisis Brazil has faced since 2016, few relevant political actors have proposed to replace the 1988 Constitution. Jair Bolsonaro’s Vice-President, Hamilton Mourão, argued for a time that a new constitution should be drafted by a “commission of experts”, rather than a popular assembly – the very measure the 1987-1988 Constituent Assembly democratically rejected. There is reason to suspect that these proposals are not made for noble purposes.
Before considering another change in the constitutional order, Brazilians need to reconstruct the ethos of legality presupposed by constitutionalism, and the right way to do so is not only by taking responsibility for these institutional failures, but also by reinforcing our commitment to constitutionalism. Brazil certainly needs to be observed carefully given the current circumstances – and therefore important debates such as the one Professor Ackerman raises are welcome. Yet, as usually happens in comparative constitutional law and comparative politics, there are no simple answers. Context and longstanding practices challenge not only common wisdom but also normative assumptions, however much they may be based on thoughtful observations and interpretations of distinct realities. Brazil’s constitutionalism is facing a critical moment, but, if Brazil’s history is a good omen, its current challenges should be confronted under the auspices of the 1988 Constitution, not outside of it.
Suggested citation: Thomas da Rosa Bustamante, Emilio Peluso Neder Meyer, Marcelo Andrade Cattoni de Oliveira, Jane Reis Gonçalves Pereira, Juliano Zaiden Benvindo and Cristiano Paixão, Why Replacing the Brazilian Constitution Is Not a Good Idea: A Response to Professor Bruce Ackerman, Int’l J. Const. L. Blog, Jul. 28, 2020, at: http://www.iconnectblog.com/2020/07/why-replacing-the-brazilian-constitution-is-not-a-good-idea-a-response-to-professor-bruce-ackerman/
 Bruce Ackerman, ‘The New Separation of Powers’ (2000) 113 Harvard Law Review 633, 633-729.
 See Frances Hagopian, ‘“Democracy by Undemocratic Means”?: Elites, Political Pacts, and Regime Transition in Brazil’ (1990) 23 Comparative Political Studies 147, 147-70. (arguing that “… political pacts bargained by elites that made the regime transition possible limited the extension of democracy”).
 See Scott Mainwaring, ‘Presidentialism in Latin America’ (1990) 25 Latin American Research Review 157, 157-79; Juan J Linz, ‘The Perils of Presidentialism’ (1990) 1 Journal of Democracy 51, 51-69.
 See Leonardo Barbosa História Constitucional Brasileira: Mudança Constitucional, Autoritarismo e Democracia no Brasil Pós-1964, (Biblioteca Digital da Câmara dos Deputados 2012); Cícero Araújo, ‘O Processo Constituinte Brasileiro, a Transição e o Poder Constituinte’ (2013) Lua Nova: Revista de Cultura e Política 327, 327-80; Marcelo Andrade Cattoni de Oliveira and Rafael Dilly Patrus, ‘Constituição e Poder Constituinte no Brasil Pós-1964: O Processo de Constitucionalização Brasileiro entre “Transição e Ruptura”’ (2016) 45 Quaderni Fiorentini 171, 171-91; Juliano Zaiden Benvindo, ‘The Forgotten People in Brazilian Constitutionalism: Revisiting Behavior Strategic Analyses of Regime Transitions’ (2017) 15 International Journal of Constitutional Law 332, 332-57.
 See Barry Weingast, ’Designing Constitutional Stability’ in Roger Congleton and Birgitta Swedenborg (ed.), Democratic Constitutional Design and Public Policy Analysis and Evidence (MIT Press 2006) 343
 See Zachary Elkins, Tom Ginsburg, and James Melton The Endurance of National Constitutions, (Cambridge University Press 2009) 83.
 See Antônio Sérgio Rocha, ‘Genealogia da Constituinte: do Autoritarismo à Democratização’ (2013) Lua Nova, São Paulo, 88:29-87
 See Zachary Elkins, Tom Ginsburg, and James Melton The Endurance of National Constitutions, (Cambridge University Press 2009)
 See Cristiano Paixão & Juliano Zaiden Benvindo, “Constitutional Dismemberment” and Strategic Deconstitutionalization in Times of Crisis: Beyond Emergency Powers, Int’l J. Const. L. Blog, Apr. 24, 2020, at: http://www.iconnectblog.com/2020/04/constitutional-dismemberment-and-strategic-deconstitutionalization-in-times-of-crisis-beyond-emergency-powers/ and Cristiano Paixão & Paulo Blair, Between Past and Future: The 30 Years of the Brazilian Constitution, Int’l J. Const. L. Blog, Oct. 10, 2018, at: http://www.iconnectblog.com/2018/10/between-past-and-future-the-30-years-of-thebrazilian-constitution/
 T Ginsburg and A Huq, How to Save a Constitutional Democracy (Chicago and London, The University of Chicago Press, 2018), 173.
 Bruce Ackerman Revolutionary Constitutions: Charismatic Leadership and the Rule of Law, (Harvard University Press 2019)
 See José Antônio Cheibub, Zachary Elkins, and Tomi Ginsburg, ‘Latin American Presidentialism in Comparative and Historical Perspective’ (2011) 89 Tex. L. Rev. 1707, 1730 (arguing that “Latin American presidential pattern is one to be celebrated rather than condemned”).
 See Bruce A Ackerman We the People, Volume 1, (Harvard University Press 1993) 369. On this topic, see also Juliano Zaiden Benvindo, ‘The Seeds of Change: Popular Protests as Constitutional Moments’ (2015) 99 Marquette Law Review 364, 364-426.
 L Barbosa, História Constitucional Brasileira: Mudança Constitucional, Autoritarismo e Democracia no Brasil Pós-1964 (Brasília, Câmara dos Deputados, 2016). ‘The Brazilian constitutional convention was characterized by extraordinary public involvement […]’ (Z Elkins, T Ginsburg and J Melton, The Endurance of National Constitutions (Cambridge, Cambridge University Press, 2009), 79), Juliano Zaiden Benvindo, ‘The Forgotten People in Brazilian Constitutionalism: Revisiting Behavior Strategic Analyses of Regime Transitions’ (2017) 15 International Journal of Constitutional Law 332, 332-57
 See Miklós Bánkuti, Gábor Halmai, and Kim Lane Scheppele, ‘Hungary’s Iliberal Turn: Disabling the Constitution’ (2012) 23 Journal of Democracy 138, 138-46.
 See Wojciech Sadurski Poland’s Constitutional Breakdown, (Oxford University Press 2019). Poland, however, adopts
 See Richard Albert, ‘Constitutional Amendment and Dismemberment’ (2018) 43 Yale J. Int’l L. 1, 1-129.
 See Jon Elster, ‘Forces and Mechanisms in the Constitution-Making Process’ (1995) 45 Duke Law Journal 364, 364.
 See R Albert, Constitutional Amendments: Making, Breaking and Changing Constitutions (OUP, 2020), 63.