Of the seven that Brazil has had in its history, two were under: that of 1934, which was intended to be democratic, and that of 1937, granted with the establishment of the Estado Novo, of a centralizing nature and which suppressed individual and political rights.
The two Magna Cartas represented an increase in the centralization of power and functions in the country after the First Republic, marked by the strength of the states to the detriment of the federal government to the point where the parties were of a state, not national, nature.
The two texts under Vargas, however, influenced the following three Constitutions, which fluctuated in how much the central power could do, beyond the extent of rights guaranteed by law.
The 1988 Constitution, the current text that governs the country, is the one with the greatest protection in terms of individual, social and environmental rights guaranteed, both in article 5, known for guarantees such as the freedom to come and go, and in other provisions, such as the right to freedom, in article 196, or article 11, which establishes freedom and rules for the creation of political parties.
Looking at the degree of attributions between federative entities, the current Magna Carta adopts cooperation between the Union, states and municipalities. There are exclusive competencies of the three political degrees, in addition to common themes, that is, where more than one figure can legislate on the subject. Finally, there are competing competencies, when federal law provides general guidelines, which are supplemented by the states.
The way in which the different themes and issues of public administration are organized was not always like this, and varied depending on the political context. The first Constitution in the country’s history, that of 1824, still in the Empire, was essentially centralizing.
The Brazilian State was unitary at the time — all political and legislative power rested with the monarchy and the national Legislature. The country was parliamentary, that is, a prime minister would have autonomy to form a government cabinet and execute legislation.
However, the constitutional text provided for the Moderating Power, which gave the emperor more power by allowing him to intervene in the General Assembly (the name for the Legislature at the time) and depose ministers.
There were provinces, equivalent to the current states, and municipalities, but these were merely administrative in nature, without autonomy to make decisions that differed from the Brazilian central power depending on the local reality.
It came in 1889 and, two years later, the Constitution of 1891, with an essence contrary to what the Empire advocated: in addition to the change in the type of State, which now became federative, the central power lost strength and the states were empowered.
Inspired by the American model of social and political organization, the autonomy of local powers was a request from economic elites across the country, which even gave rise to coronelismo. In addition to financial power, political perpetuation occurred through various electoral frauds and the fact that the vote was not secret.
Talking about elections in the First Republic, they were organized by the states, without a central body that standardized the operation of the process, as it is today. Votes were counted by state, and those elected were graduates of or, in the federal case, the .
At the time, states had the prerogative to take out loans abroad, impose taxes and have their own electoral codes, among others. Even with more independence, the central government still had strength, as it had the prerogative to legislate on civil, commercial and criminal law.
The first Magna Carta of the Republic lasted 39 years, when Getúlio Vargas came to power in 1930 and suspended it. Four years later, the 1934 text was promulgated, already with some changes in relation to the First Republic by, for the first time, guaranteeing social rights.
This movement occurred in the face of the Weimar Republic in , precursor of the social welfare state by ensuring or . Some things changed in this document, such as the creation of the (Superior Electoral Court), centralizing the organization of elections in the country.
It is in this Constitution that the exclusive powers of the Union vis-à-vis the states gain strength. In this text, the central power became the only one authorized to maintain postal services, establish a railway plan, draw up educational guidelines and carry out a population census, among others.
Three years later, the text was revoked by the 1937 Constitution, granted at the inauguration of the Estado Novo. It is completely centralizing, not only in terms of attributions, but also in symbols: it went so far as to prohibit states from having symbols or flags. “We no longer have regional problems; they are all national, and are of interest to the whole of Brazil,” said Getúlio.
According to the document, the state that did not maintain public accounts in the black could be transformed into territories by the federal government — in this case, they would be administered more directly by the central power.
Articles 74 and 75 would grant the President of the Republic the power to intervene in the states and appoint heads of the state Executive, and created the decree-law, edited by the president and with the force of legislation, in the absence of Congress.
After the Vargas Era ended, the mission of the 1946 Constitution was to resume the federative pact and the democratic regime. It continued with a certain centralization of power in the Union as it was inspired by the text promulgated in 1934, resuming the independence of the Legislature and the .
Governors were also elected again, without the possibility of intervention from central power, and could have flags, symbols and anthems. The federative units were once again able to impose taxes and legislate freely or in a way that competed with what the Union regulated.
Administratively, both states and municipalities had autonomy to organize themselves politically and financially.
It survived 21 years, but was widely violated after the 1964 coup, which issued Institutional Act number 1. This legal type, not foreseen by the Magna Carta, suspended the country’s highest law and gave the military control over political parties, the political and institutional structure, which centralized power among the uniformed men who commanded the country.
The famous AI-5 (Institutional Act number 5) was the symbol of centralization under the decree of a state of siege by the President of the Republic, giving more powers to the head of the federal Executive, in addition to the authorization to intervene in states and cities, appointing governors and senators, for example.
To legally consolidate the law, the 1967 Constitution was granted, which two years later was almost entirely edited in a constitutional amendment in 1969. In the name of national security, the Legislatures across the country, whether federal or state, were emptied, with the decree-law instrument returning to the Brazilian legal scenario and on any topic.
In the end, even with the citizen Constitution and its extensive charter of rights, whether individual, social or diffuse, experts still see greater federal strength over local powers.
According to Wallace Corbo, lawyer and professor of constitutional law at Uerj (University of the State of Rio Grande do Sul), the current Magna Carta is the most decentralized model for the distribution of powers since the Vargas Era, but it continues to maintain an important role for the Union in national issues.
The federal government’s list of competencies, according to Corbo, is still broad in response to the coronelismo seen in the First Republic, but decentralized. He currently sees careful decentralization to avoid local abuses.
“Although the current model is more centralized than many others around the world, it is less centralized than it once was. The most obvious example of this occurred during the pandemic, when the Union was unable to prevent states and municipalities from adopting social isolation measures.”
Juliana Bastos, professor of constitutional law at PUC-SP (Pontifical Catholic University of ) and FMU (Faculdades Metropolitanas Unidas), highlights that the current text follows the country’s centralizing tradition.
She says that, in the dictatorship under Vargas and the military regime, the concentration of power was such that the organization as a federation became a mere legal facade. “The centralizing colonial and imperial heritage added to the need to maintain territorial unity are the reasons why the Brazilian federative model is centralized”, he states.
“The truth is that, with the number of responsibilities of the Union, there is little left for states and municipalities. As an example, there are a large number of matters where only the federal sphere can legislate (therefore, defined at the national level) such as civil, criminal and electoral law”, says the professor.
