Конституционная история Бразилии: от монархии к диктатуре и обратно.

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During its independent political history, Brazil has had seven constitutions. The most recent was ratified on October 5, 1988.

On November 15, 1889, the emperor Pedro II was deposed, Brazilian monarchy abolished and the 1824 Constitution was put out of effect. No provisional constitution was used while a definitive successor document was being written. The writing process began in 1889, by a group of jurists and politicians, and the text was later amended by a Constitutional Congress on February 24, 1891.

In 1930, after severe political problems, President Washington Luís was overthrown by a coup d'état. The 1891 Constitution was annulled and the Provisional President Getúlio Vargas ruled as a de facto personal dictator, but the state landed elites (who had controlled the Brazilian state ever since independence) struggled to prevent this from continuing. In 1932, in São Paulo, the Constitutionalist Revolution demanded a Constitution. As a result, a Constitutional Assembly was elected and the constitution was promulgated on July 16, 1934, less than four years after the coup d'état had overthrown the Old Republic. Vargas accepted this constitution in order to legitimise his power.

This constitution was the shortest lived Constitution of Brazil, lasting only three years (until 1937). Despite its short life, this constitution was important because it was the first time a Brazilian constitution was written from scratch by directly elected deputies in multi party elections. As a consequence of this, it incorporated a number of improvements to Brazilian political, social and economical life:
Granted complete independence to the Supreme Court and subordinated all other courts to it. Extended political rights to all adults, regardless of sex. Introduced proportional voting for elections to the Chamber of Deputies, which included representatives of the people as well as a minority of representatives from trade unions and other professional organizations – a corporatist device introduced under the shock of the Russian Revolution and the influence of Italian fascism. Created a specific electoral court to supervise elections, under the control of the Supreme Court (previously the supervision of elections was under control of the Legislative Branch). Following a trend set by the German Weimar Constitution, acknowledged a whole host of social rights alongside political and civil ones: the national minimum wage, the eight hour workday, mandatory weekly rest, paid vacations and indemnity for unmotivated firing. Created a labor court to supervise working conditions and codified rights and duties for both the employers and the employees. Was the first Brazilian constitution to list all four basic freedoms (speech, religion, movement and assembly) alongside the basic rights (life, freedom and property).

On the night of November 10, 1937, Vargas announced in a nationwide radio address that he was seizing emergency powers under the pretext of suppressing a Communist backed coup (the so called Cohen Plan). On the same night, he promulgated a new constitution that effectively transformed his presidency into a legal dictatorship (the short interval suggesting that the self coup had been planned well in advance). It was written by the minister of Justice, Francisco Campos, and proofread by Vargas and his minister of War (joint commander of the Army and Air Force), Eurico Gaspar Dutra.

When Vargas was forced to resign in 1945, a new constitution was written, once again by a directly elected Constitutional Congress.

After the military coup d'état of April 1, 1964 the controllers of the new regime kept the 1946 constitution and promised to restore democracy as soon as possible. However, they did not and were faced with a dilemma, as every major measure they took was strictly against that current constitution, including the coup itself. The so called Institutional Acts sequentially issued by the military presidents were, in practice, placed higher than the Constitution and could amend it. Even under these circumstances, the first military president, Humberto de Alencar Castelo Branco, was committed to restoring civilian rule in 1966. However, a large number of military and civilian extremists felt the military had to stay in power for some years. They also wanted to pass more "proper" laws to fight subversive individuals (anyone that opposed the regime). By 1965, however, the situation reached an unbearable point when opposition candidates won the governorship of Minas Gerais and Guanabara. Castelo Branco refused to annul the results. A coup was only averted when Castelo Branco agreed to support the military's reform program. By this time, the military had decided to drop all pretense of democracy. It also felt the 1946 constitution was "obsolete" as the "new institutions" were not foreseen in it. A new constitution was written by a team of lawyers commissioned by Castelo Branco and amended (under the instructions of Castelo Branco himself) by the Minister of Justice, Carlos Medeiros Silva and voted as whole by the Brazilian Parliament (already purged of most opponents of the status quo).

The seventh and current Brazilian Constitution was promulgated on October 5, 1988 after a two year process in which it was written from scratch by a Constitutional Congress elected in 1986.

It appears as a reaction to the period of military dictatorship, seeking to guarantee all manner of rights and restricting the state's ability to limit freedom, to punish offenses and to regulate individual life. On the other hand, it did not provide clear rules for state reform and kept the economic regulation of the country intact. Among the new constitutional guarantees are the errand of injunction and the habeas data (one's right to have access to any data about him kept by the Government). It also anticipated the existence of a Consumers' Defence Code (which was brought out in 1990), of Children's and Youth Code (1990) and of a new Civil Code (2002). It was the first constitution to demand severe punishment for breaches of civil liberties and rights. Consequently, Brazil later approved a law making the propagation of prejudice against any minority or ethnic group an unbailable crime. This law provided legal redress against those who spread hate speech (like Neo Nazis) or those who do not treat all citizens equally. This second aspect helped disabled people to have a reserved percentage of jobs in the public service (and soon in all large companies), and black people to seek reparation for prejudice in the courts. Breaking with the authoritarian logic of the Constitution of 1967, it made unbailable crimes those of torture and of actions directed against the democratic state and the constitutional order, thus creating constitutional devices to block coups d'état of any kind. Willing to create a truly democratic state, the Constitution has established many forms of direct popular participation besides regular voting, such as plebiscite, referendum and the possibility of ordinary citizens proposing new laws. Examples of these democratic mechanisms were the 1993 plebiscite concerning the form of government, where the Presidential system was confirmed, and the 2005 referendum concerning the prohibition of the sale of firearms and ammunition. The mention of God in the preamble of the Constitution (and later on the Brazilian currency) was opposed by most leftists as incompatible with freedom of religion because it does not recognize the rights of polytheists (like the Amerindians) or atheists, but it has not been removed so far. The only State Constitution that does not refer to God is the one of Acre. The Supreme Federal Court has ruled that this omission of the protection of God was not unconstitutional since the preamble of the constitution is simply an indication of principles that serves as an introduction to the constitutional text and reflects the ideological conceptions of the legislator, falling within the scope of political ideology and not of the law. Therefore, the preamble which is not actually a part of the supreme law, has no judicial validity whatsoever and cannot impose obligations or create rights.

Despite its advances concerning individual rights and freedoms and also in government control, the Constitutional text brought dispositions that resulted in severe difficulties concerning governmental efficiency. In the following years, especially from 1995 onwards, this meant it had to be amended many times to get rid of impractical, contradictory or unclear provisions (but also to accommodate the economic reforms conducted by the government, for which such amendments have been sometimes criticized ). As of August 2020, this Constitution has been amended 108 times.