Artigo do colega Jose Theodoro Menck sobre os 200 anos da Constituição

Terra Brasilis: The Efficacy of the 1824 Constitution

By José Theodoro Mascarenhas Menck

On March 25th, it marked 200 years since the Brazilian Constitution of 1824 came into effect. We believe that the symbolism of the date did not receive the proper attention from the press, largely due to the unique period of political instability we are currently experiencing. Nevertheless, it is important to recall the event because it greatly explains the Brazilian people's unique affinity for liberal values, which, although not fully realized throughout its history, have always been deeply ingrained in its aspirations.

Octaciano Nogueira, in his insightful introductory text to the 1824 Constitution, originally published by the Federal Senate in 1987 under the "Brazilian Constitutions" Distance Learning program, began his text by posing two questions:

"What is important in a Constitution?

Its efficacy or its durability?"

The question posed, in truth a provocation, does not make much sense, as Octaciano Nogueira himself soon acknowledges, since constitutional charters have their efficacy recognized precisely because of their respective durabilities: "after all, what is expected of any constitutional document is that it can regulate the institutional life of the country in a stable manner, without the need for frequent changes, even in moments of crisis."

However, stability is not the rule. Mark W. Cannon, in a text written during the bicentennial celebrations of the United States Constitution in 1984, declared that at that time, about two-thirds of the 160 Constitutions then in force had either been adopted or revised after 1970. Only 14 of them, less than 10%, predated World War II. Moreover, more than half, or more precisely, 53.5% of independent states had already had more than one Constitution since the end of World War II in 1945. He also noted that, in 1984, the average for almost all states was to have had two Constitutions since 1945, and that at least two of them –Syria and Thailand– had undergone no less than nine Constitutional Acts in the period from 1945 to 1984.

The situation of the Brazilian Republic is not much different. Taking as a basis the year of the promulgation of the Republican Charter (1891), we see that Brazil has already gone through seven constitutional charters, with the latest, currently in force, promulgated on October 5th, 1988, having undergone, up to now – January 2024 – 132 constitutional amendments, in addition to six revision amendments, totaling 138 amendments to its text. This means that, in the 134 years of the Republic's history, the average duration of each Brazilian constitutional charter is less than twenty years.

However, it was not always like this.

In 1989, Brazil had the then-second-oldest constitutional charter in the world, just after the United States Constitution, which was promulgated in 1787. However, while the US Constitution, which originally consisted of only seven articles (several of them subdivided into various sections), had fifteen amendments at the time (the sixteenth amendment was ratified in 1913), the Brazilian Constitutional Charter of 1824 had only one amendment when it was revoked in 1891 – the Additional Act of 1834.

In other words, the 1824 Constitution was not only the Brazilian constitutional charter with the longest durability but also had the most stable text.

The durability and stability of the Imperial Constitutional Charter, however, did not reflect a possible fossilization of institutions; quite the contrary, Brazil, throughout the reigns of D. Pedro I, the various Regencies, D. Pedro II, as well as during the regencies of D. Isabel, evolved and underwent profound changes. It was under the auspices of its validity that the entire historical evolution of the Brazilian Monarchy took place without institutional ruptures, encompassing moments of significant importance in all areas, including military interventions in the River Plate and the War of the Triple Alliance; in the economic field, the end of England's preferential tariff, the beginning of economic protectionism with the Alves Branco tariff of 1844, and the start of industrialization; in the social sphere, the abolition of the slave trade in 1850, the successive emancipation laws of the slaves, culminating in the Abolition in 1888.

The secret of the persistence of the 1824 Constitutional Charter lay in its plasticity, which allowed it to flex and adapt to the various moments the country went through during its 65 years of validity

It is from this data that one must examine the importance of the first Charter in the constitutional history of Brazil. The 1824 Constitution was not only useful in moments of political stability, achieved during the Second Reign, after the Praieira Revolution (1848-1849), the last political revolt of the monarchical period. It was also a useful tool during times of crisis that multiplied in an endless succession of revolts and uprisings that occurred between 1824 and 1848.

Certainly, one of the main "secrets" of the "success" of the 1824 Constitutional Charter lies in its art. 178, which reads:

"Art. 178 – Only constitutional is what pertains to the limits and respective attributions of the political powers, and to the political and individual rights of the citizens; everything that is not constitutional can be changed, without the formalities mentioned, by ordinary legislatures."

Through this article, the then predominant doctrine was consecrated, stating that only norms referring to the structuring of the State, as well as those referring to the guarantees of liberties, whether public or individual, would have their constitutional nature recognized, within the scope of the precepts concerning constitutional reform.

The fact is that the malleability introduced by such doctrine into the constitutional text was so substantial that, with only one amendment – the aforementioned Additional Act of 1834, the 1824 Constitution was able to satisfactorily regulate the institutions both in the authoritarian period of D. Pedro I, during the turbulent period of the so-called "republican experiment," represented by the regency period extending from April Seventh – abdication of D. Pedro I in 1831, to the Majority of the second Emperor in 1840; as well as in the institution of the parliamentary practice that characterized the government of the second Pedro. All this without the need to touch any of its articles.

Nevertheless, although not provided for in its text, we can say that the creation of the position of President of the Council of Ministers in 1847, by a simple decree of the Executive, established successful Parliamentarism in Brazil. Similarly, we moved from indirect voting in two degrees to direct election, with the promulgation of the Saraiva Law in 1881.

It must be recognized, however, that in this latter point, the electoral reform generated memorable controversy since the consecration of the two-degree election system, established in 1822, for the choice of the Constituents of 1823, was expressly provided for in the constitutional text.

During the validity of the 1824 Charter, Brazil experienced the district system in various formats, significantly altered electoral legislation but left the Constitution untouched. Brazil underwent profound changes in various areas, without anyone thinking or feeling the need to reform the old Charter, which lasted for 65 years.

Its plasticity and, more than that, its adaptability to the political, economic, and cultural conditions of the time are reasonably and abundantly documented.

Finally, it is worth remembering a relevant fact that cannot be overlooked in the examination of the virtues of the 1824 Constitutional Charter. As Octaciano Nogueira recalled, the monarchical Constitution was so malleable that the Republic itself could have been implemented in the country with a simple constitutional amendment. And this, for two reasons. The first is that, unlike what became tradition in republican Charters, the Empire's Constitution did not establish restrictions on the derivative constituent power. All provisions, therefore, were amendable, including the one that enshrined monarchy as the form of government. The second reason is that, although constitutional amendments had the same legislative process as ordinary law and, therefore, depended on the Emperor's sanction, in the event of a change in the form of government, as in any other constitutional matter amended by ordinary law, the Monarch could not refuse the sanction if approved by two subsequent legislatures, according to what was provided in Art. 65: This shows that, until the fall of the then-current regime, the 1824 Constitution admitted, through a simple amendment.

We did not have greater flexibility in any of the subsequent constitutional documents. All these peculiarities demonstrate the importance, even today, of the 1824 text when compared to all the others we have had.

When we examine the 1824 Constitution, as the first text of our constitutional history, we cannot overlook the fact that it was the result of the frustration of the dissolution of the Constituent Assembly of 1823, which not only began to generate a divorce between the Crown and public opinion but also stained the government of D. Pedro I with blood, through the violent repression of the Confederation of the Equator, which occurred in Pernambuco in 1824, demanded by the Emperor, and marked the beginning of the divorce between the monarch and the Army.

Although for the vast majority of scholars, the 1824 Charter was granted, it marked the beginning of the institutionalization of constitutional monarchy. And from there, it established the Powers of the State, guaranteed rights, and contained abuses. The practice it instituted, however, only shaped over time. When the Legislature was installed in May 1826, four years after Independence was proclaimed, constitutional practice truly began.

The legal framework of the Empire, although based on the 1824 Constitutional Charter, was completed with the promulgation of a series of ordinary laws that are materially constitutional, although its only amendment was the Additional Act, adopted by the law of August 12, 1834.

Any listing of laws aimed at presenting the institutional framework of any era will always be overly lacunary; however, within the Brazilian legal system in the imperial era, for its understanding, one should certainly consider the following legal diplomas:

a) Law of October 15, 1827, Law on the Responsibility of Ministers and Secretaries of State and Councilors of State;

b) Law of September 18, 1828, Law on the Constitution and Composition of the Supreme Court of Justice;

c) Law of October 1, 1828, Law on the Organization of Municipal Councils. A legal norm that, by creating Municipal Councils in every city and town in the empire, gave them only administrative functions, removing their contentious jurisdiction they had during the colonial period;

d) Law of December 16, 1830, which "Executes the Criminal Code";

e) Law of November 29, 1832, which created the First Instance Criminal Procedure Code with a Provision on the Administration of Civil Justice;

f) Law of October 3, 1834, Duties of the Presidents of the Provinces;

g) Law no. 105, of May 12, 1840, Interprets Some Articles of the Constitutional Reform – the so-called Law of Interpretation of the Additional Act;

h) Law no. 234, of November 23, 1841, which reinstated the Council of State;

i) Law no. 261, of December 3, 1841, which reformed the Criminal Procedure Code. Centralized the Police and the Judiciary;

j) Law no. 3,029, of January 9, 1881, the so-called Saraiva Law, which instituted direct voting.

It is clear that, from a social and economic point of view, no other legal reform was more significant or had greater importance than the one undertaken by the series of laws that began with the Law of November 7, 1831, which outlawed the introduction of slaves into Brazil; followed by the Law of September 4, 1850 – Establishes measures for the repression of the African trade in this Empire – the Eusébio de Queiroz Law, which effectively ended the slave trade; followed by the Law of September 28, 1871, which at the time was called the Golden Law but today we know as the Free Womb Law; followed by the Law of September 28, 1885, the Law of the Sexagenarians, and culminated in Law no. 3,353, of May 13, 1888, which entered history as the definitive Golden Law. This series of laws was the most important promulgated throughout the imperial period and honors the country that the great problem of the abolition of forced labor, which elsewhere led to true fratricidal wars, in Brazil was resolved within the General Assembly of the Empire, through determinations of a set of laws. These laws were voted on, within the broadest parliamentary freedom, and strictly followed the rules of the legislative process then in force.

In short, we believe that the real and fairest measure for assessing the quality of the Constituent's work lies, above all, in having this, even if under the granted form, which greatly tarnished it, in effect for as long as the Brazilian Monarchy lasted, having reached the ripe age of 65 years.

It is likely that the secret of the success and longevity of the text drafted by Antônio Carlos was precisely that pointed out by José Bonifácio above quoted

"A good Constitution is the one that the people want to execute; from which I conclude that not to be our blurred paper, as many in Europe have been, it must be appropriate to the country and in line with the feelings and principles that have generally taken root in the people"

Written in Brasília, on Easter Sunday of the Year of Our Lord 2024.

PROFESSOR JOSE THEODORO MASCARENHAS MENCK is widely regarded as Brazil's preeminent historian, celebrated for his authoritative works on the pivotal epochs and influential figures of Brazilian history and industry. He is recognized as a leading authority on constitutional matters, contributing significantly to the understanding and interpretation of Brazil's legal framework.