Constitution, Government and Democracy in Brazil

Abstract

With the intention of contributing to the comparative studies about the impact that constitutions have on the ordinary democratic political process, this article analyses the profile of the Brazilian 1988 constitution based on its contents and discerning to what extent the constitutional text - as well as its constitutional provisions - comprises public policies. Our hypothesis is that a constitutional text that contains many public policies (like the Brazilian one) is more prone to become a target of changing initiatives. The Brazilian constitution of 1988 presents a high rate of constitutional amending, with 62 amendments in twenty years (3.1 amendments per year); most of them sponsored by the Executive branch, aiming at implementing public policies. Due to the fact that the post-1988 governmental platforms have abided a ``constituent agenda," the comprehension of the current Brazilian political dynamics (especially the relationship between branches of government) passes necessarily through the understanding of Brazilian constitutional features. Such analysis has been done by means of a ``Constitutional Analysis Methodology" (Metodologia de Análise Constitucional - MAC) developed by the authors, which allows for the interpretation of the meaning of the constitutional provisions as well as their measurement.

Replacing and Amending Constitutions: The Logic of Constitutional Change in Latin America

“…For instance, if courts have strong powers of judicial review and the constitution is easily amendable, judicial interventions may increase amendments by Congress since legislators would often resort to this mechanism to overcome controversial judicial interpretations. In addition, a constitution that incorporates substantive policies may encourage both amendments to incorporate policy shifts and frequent judicial interventions to decide on the constitutionality of legislation (Arantes and Couto ). In any event, when adaptation is made by both amendments and judicial interpretation, constitutional durability should be enhanced.…”

“…A more precise way to determine the policy content of constitutions would be counting the rate of explicit policy provisions in the constitution (Couto and Arantes ; Hammons ). Nevertheless, as Hammons (: 841) has argued, the length of the constitution is a reasonable proxy of policy content given the correlation that exists between length and number of provisions, on the one hand, and the number of provisions and particularistic content, on the other.…”

Imitação Ou Coerção? Constituições Estaduais E Centralização Federativa No Brasil

“…[Machado, 2014:348;author's boldface] In this regard, however, it is worth noting that Brazilian centralism and coercive diffusion of norms and policies manifest themselves in two different ways. On one hand, states (and even municipalities) replicate, at the regional and local levels, constitutionally-mandated federal institutional forms (government branches, public administration, and law), reproducing at a smaller scale the very same characteristics of the federal government -what Couto and Arantes (2008) define as polity. On the other, both in the constitutional and subconstitutional frameworks, states and municipalities replicate policy, regionally and locally introducing public policies formulated and legislated at the federal level (Arretche, 2009), and implemented by subnational entities -albeit with some variation (Lotta, Gonçalves and Bitelman, 2014;Soares and Cunha, 2016).…”

A Methodological Critique on Constitutional Amendment Theory

“…Constitutionalism, constitutional law, the subjects of constitution crafting and constitutional change themselves have been subject of intense debate and study since at least "The Federalist Papers". Lately, though, a more focused approach on the problem of constitutional amendment itself has come to the fore (Lutz, 2006;Lorenz, 2005;Elkins Ginsburg and Melton, 2009;Couto and Arantes, 2008).…”

“…seek to constitutionalize their current policy choice preferences (Hirschl, 2004;Knight, 2001). Also, retroactively, current majorities may have to deal with heavy constitutional legacies, in order to implement ordinary government policies (Couto and Arantes, 2008);…”