Interconstitutionalism as a Tool to Enhance Legitimacy: Lessons from Brazil

Ana Beatriz Robalinho

Yale Law School

In their new article, Jason Mazzone and Cem Tecimer explore a fascinating aspect of constitutional interpretation. Interconstitutionalism involves the use of previous constitutions to generate meaning for the current constitution, a practice the authors recognize poses challenges to the idea of popular sovereignty. After all, a sovereign people should be able to set its own political course by adopting a new constitution without being constrained by a prior charter. 

In fact, denying the power of past legal constraints is often the whole point of new constitutional commitments. A new constitution may be adopted as the result of a popular revolution, and replace an old, less democratic document. The idea that the past – especially an autocratic past – places deep constraints on the ability of a polity to truly reinvent itself thus seems disheartening. 

And yet, Mazzone and Tecimer suggest interconstitutionalism is not entirely unwelcome from a democratic perspective. They argue that the constraining nature of interconstitutionalism can provide a basis for constitutional legitimacy by requiring proper constitutional change to be textually clear and decisive. The authors point out also that textual continuity in the face of supposedly marked political change itself can generate doubts about the degree of rupture with the past.

In this context, Brazil offers a powerful example of the democracy-enhancing character of interconstitutionalism. The Brazilian Supreme Court, charged with defining the meaning of a constitution that has been deemed a clean break with a constitutional past often regarded as dictatorial and ineffective, has used interconstitutionalism as a tool to denounce the mistakes the drafters have made in textual continuity and change.

The Constraints of the Past

Since it declared itself independent from Portuguese rule in 1822, Brazil has had no fewer than seven constitutions. These constitutional experiences, each profoundly different from the others, comprise the Imperial Constitution of 1824 that recognized the Emperor’s divine and supreme power, two constitutions drafted by dictatorial governments, and four charters, including the current Constitution of 1988, which were the product of semi-democratic experiences. 

Despite the different political and historical contexts in which these constitutions were drafted, there are numerous examples of textual continuity. This is partially so because Brazil adopted over time a tradition of long and elaborate constitutional texts. While the first republican Constitution of 1891 was modeled after the US Constitution and was the shortest of the seven national charters, every subsequent charter was considerably longer, culminating in the current 1988 Constitution, which has more than 250 articles. 

With so much to pack into the text, it is no wonder that every constitution has borrowed quite a few provisions from its predecessor(s). Yet the 1988 Constitution came into existence with a promise to be unlike any of its predecessors. The 1988 Constitution was supposed to involve a complete break with the past, a repudiation not only of the dictatorship that preceded it, but also of the general perception of ineffectiveness of previous constitutional promises. The drafting process for the 1988 Constitution was longer, freer and more democratic than any the country had previously experienced. Therefore, textual continuity between the 1988 Constitution and its predecessors deserves closer scrutiny. 

Interconstitutionalism in the Brazilian Supreme Court

The Brazilian Supreme Court is no stranger to interconstitutionalism. The long constitutional history that preceded the adoption of the current Constitution, also reflected in the Court’s own precedents, render interconstitutionalism a common interpretive practice. There are two distinct forms in which interconstitutionalism has shown itself in the Court’s case law under the 1988 Constitution.

The first form is perhaps more traditional, and certainly more expected – and it shows one of the pitfalls of interconstitutionalism that Mazzone and Tecimer warn about. In these precedents, prevalent especially in the first few years following the enactment of the 1988 Constitution, the Court clung to the case law it had developed under previous constitutional texts because it was all the Court knew. Scholars have argued that the Courts’ allegiance in this period to interpretations reached under previous constitutions was also a result of the Court’s own political resistance to the progressive character and sweeping constitutional reforms of the 1988 constitutional text. As a result, the Court acted deliberately to thwart some of the most daring reforms the new Constitution had proposed. 

I want to focus here on a second and different form of interconstitutionalism in the Court’s precedents, one that has been far less discussed, but which shines light upon a far more positive impact of its use in constitutional interpretation. In this second form, the Court invokes antecedent provisions from previous constitutions to denounce the constitutional drafters of the current Constitution. The Court criticizes the drafters for not altering the text to reflect the character of the new constitutional system, or for making alterations that detract from such character, when compared to previous charters. In such cases, the Court essentially calls for an informal alteration of a textual provision to reflect its more appropriate meaning under the new Constitution.

Interconstitutionalism and Informal Constitutional Change

Two cases provide examples of this approach. In the first, the Court was called upon to interpret a provision of the 1988 Constitution that was part of the constitutional framework under the three previous constitutions. The provision charged the Senate with suspending the effectiveness of a law deemed unconstitutional by the Court. In interpreting the provision, the Court recognized that, in previous constitutional systems, the Court’s decisions in concrete cases were not universally binding, such that judicial review of legislation meant a law would be void only if the Senate, after the decision, followed the procedure to suspend the law. 

However, the Court argued, the 1988 Constitution produced a sweeping constitutional reform intended to centralize constitutional interpretation in the Supreme Court by making its decisions binding on all. Under the new system, it no longer made sense to assume the Court’s interpretation of the Constitution would not be binding simply because the decision was given via a concrete case or appeal, rather than through direct and abstract challenges of constitutionality. The Court thus held that the repetition in the new Constitution of the provision that charged the Senate with suspending laws already deemed unconstitutional by the Supreme Court was an anachronistic and unnecessary exercise of textual continuity.

In the second case, interconstitutionalism was used by the Court to interpret an electoral rule that had been carried forward, in altered form, into the 1988 Constitution. As altered in 1988, the electoral rule eliminated a prior ban on congressmen switching political parties after an election, if they wanted to keep their seats. With this ban in place, the previous constitution had made clear that adoption of proportional representation as the electoral system meant that an electoral mandate belonged to the party and not to individual representatives. Because the new Constitution dropped the ban, the Court’s first interpretation of the electoral rule, in a precedent set in 1989, was that the restriction no longer applied, and any congressman could switch to a new political party after an election. However, the Court soon came to realize that its interpretation was incompatible with the 1988 Constitution’s proportional representation electoral system, in which votes are indeed ultimately cast for a political party. The Court therefore denounced the drafters of the 1988 Constitution for dropping the ban from the prior rule as carried forward, and the Court read the new Constitution just as though the ban had not been eliminated. 

Mazzone and Tecimer are right in saying those who seek proper constitutional change must understand a nation’s past. The cases decided by the Brazilian Supreme Court show how interconstitutionalism can be used to bring a polity closer to its chosen constitutional commitments, and therefore serve as a tool to enhance constitutional legitimacy and popular sovereignty. 

Ana Beatriz Robalinho is a J.S.D. candidate at Yale Law School.

Suggested Citation: Ana Beatriz Robalinho, ‘Interconstitutionalism as a Tool to Enhance Legitimacy: Lessons from Brazil’ IACL-AIDC Blog (16 May 2023) https://blog-iacl-aidc.org/wmps-interconstitutionalism/2023/5/16/interconstitutionalism-as-a-tool-to-enhance-legitimacy-lessons-from-brazil.