The Brazilian Constitution: Context, Structure and Current Challenges

• Main Author: Lirio do Valle Vanice Regina
• Format: Article
• Language: English
• Published: Sciendo 2020-07-01
• Series: British Journal of American Legal Studies
• Subjects: brazilian constitution; human rights and the separation of powers; judicialised constitutionalism; transformative commitments and legislative inertia; judicial review and public policy
• Online Access: https://doi.org/10.2478/bjals-2020-0009

The Brazilian Constitution was enacted over 31 years ago, and it pioneered several constitutional changes in Latin America, in line with a transformational project which was to be achieved through the protection of human rights including socioeconomic rights. Three decades of this constitutional experience have highlighted aspects in which the original design has proven to be too ambitious, and not capable of overcoming political blockages as was originally intended. This Article describes the historical context in which the Brazilian Constitution was drafted and enacted, and discusses in general terms the political structure and the fundamental rights that the constitution provides. These baselines allow the reader to understand the current challenges that the Constitution now faces in the task of regulating a social ambience and collective expectations that are substantially different from those of the late 1980s which are synthesized in that same political document. Especial attention is given to judicial control over public policies—a relevant trend in the Brazilian judiciary, which raises much debate concerning its compatibility with the checks and balances principle. As a conclusion, the Article recognizes that the Brazilian Constitution is an institutional success, considering its ability to enable redemocratization, and even to overcome deep political crisis. This should not, however, be enough reason to take its strategy in the human rights field, as a successful one, to be uncritically reproduced in other countries.