“Constitutional Dismemberment” and Strategic Deconstitutionalization in Times of Crisis: Beyond Emergency Powers

30 de maio de 2020 Off Por Juliano Zaiden

Cristiano Paixão & Juliano Zaiden Benvindo, University of Brasília 

It could not be otherwise: Covid-19 is the topic of the moment in constitutional law. A series of debates over the impacts of this external factor on the functioning of democratic or authoritarian states, the leadership or not of their respective governments to face such severe challenges, the use and abuse[1] of the constitution to deal with this crisis, among other fascinating topics, are everywhere, from newspapers to academic blogs and journals. Many interesting analyses, for example, have pointed out the opportunistic use of emergency powers as a device for consolidating autocratic behavior, as it happened recently in Hungary[2] and Bulgaria. Yet, a possibly less explored subject is the strategic abuse of the very idea of emergency to justify long-term constitutional changes. It could occur in the form of what Richard Albert calls “constitutional dismemberment,” that is, “a fundamental transformation of one or more of the constitution’s core commitments,”[3] or in the form of legal acts that, in practice, imply the deconstitutionalization of such commitments. These movements can naturally and indeed occur in distinct constitutional realities with certain frequency.[4] Yet it is quite striking that they gain momentum during crises, exactly when the core constitutional principles are most in need.

It is not rare to observe political agents seizing such moments of crisis to strengthen their grip on power or to directly or indirectly change the constitution to set long-term policies and benefits. In these circumstances, there is naturally the risk that large-scale decisions be made without proper debates and, if not merely by governmental top-down decisions, according to occasional majorities’ and lobby groups’ interests. Emergency powers are the typical mechanisms to tackle moments of crisis, but, unlike what has been taking place in some countries, they are aimed at defending the constitution, not disrupting its core principles nor setting long-term changes that will disfigure the constitutional project. They set fast-track procedures for decision-making, but they should operate as sunset clauses: they impose time limits for urgent measures while keeping vigilant accountability institutions and the system of checks and balances. Although they, depending on the circumstances, may help open the Pandora’s box of authoritarian behaviors, they are not a carte blanche for radical changes, especially changes that go way beyond the previously set temporal limits and the facts that have led to the need of such emergency measures. They are not thereby suited for any sort of “constitutional dismemberment” nor the strategic deconstitutionalization of core constitutional commitments. History is nonetheless evidence that they have been continuously used exactly for this purpose.

Even in a country where constitutional history has shown the strength of the constitution over state powers, this sort of disfigurement of emergency powers is not a rare phenomenon. Part of the American constitutional literature, however, seems sometimes so persuaded by the premise of a “normative superiority and formally unchallengeable authority of the constitution,”[5] that it may feel rather optimistic in the face of historical political crises. Arthur J. Jacobson and Bernhard Schlink, for example, when examining the constitutionalism of the beginning of the 20th century, argue that, in the United States, “the constitution precedes the state, logically and temporally” and one relevant consequence thereof is that “political crisis only strengthens constitutionalism. It has never put the idea of a constitution in jeopardy.”[6] Their argument is largely historical and comparative – in the case, with the German constitutionalism during the Weimar Republic -, but it is interesting to observe how the tense relationship between the state and the constitution is translated into legal traditions in such opposing ways. America, at least the America of the beginning of the twentieth century, is Germany’s counterpart: “the German state, by contrast, precedes the constitution… Political crisis in Weimar, in contrast, was hardly constitution-affirming.”[7]  

These contrasting avenues would reflect on other key constitutional concepts, such as the distinction between the American version of rule of law, largely structured in the idea of a constitution, and the German Rechtsstaat, in which the state – not the constitution – gains strength. “This is not an accident” – said Martin Krygier, when noting that in Rechtsstaat and other analogous concepts from the civil law tradition, the “law is inextricably connected to the state…, [whereas] the rule of law does not mention the state.”[8]

However, these arguments seem more nuanced than ever when challenged by more recent critical junctures where “emergency” has become the “new normal.” See, for example, how the United States reacted to the 9/11 attacks. Constitutional changes have had enduring effect and clearly put state power on another level. The Patriot Act, approved by Congress in a rush and without any proper public or even parliamentary debate, enhanced state investigative powers in such a magnitude that it compromised some basic rights, especially privacy and due process, two pivotal elements of the American rule of law. Such moves should be temporary, and indeed the legislation had a sunset date; however, since the “war on terror” became President George W. Bush’s political mantra, the lifespan of the clauses has continued to increase. Currently, there are approximately fourteen of those clauses that have become permanent and others are still “temporarily” in force through continuous deferments.

Another temporary measure that, despite its shocking reality, has continued over the years is the Guantanamo Bay detention camp. Created in 2001 in an American military base in Cuba, it originally accommodated over 600 detainees in clear violation of international law and without allowing detainees to have any realistic access to legal courts in the United States. Extraterritoriality or emergency became the central argument to exonerate American constitutionalism from its subjection to political strategy. Yet, despite large criticisms, what was planned as a temporary “solution” has become permanent: currently, there are around forty detainees in Guantanamo Bay without any prospects of when or whether they will be ever freed. Moreover, Congress has decided not to shut down the detention camp nor transfer those detainees to American soil.

The “war on terror” sparked a sort of “deconstitutionalization” of core constitutional principles with visibly long-term outcomes. Although its consequences may have gone way beyond what was originally thought out, it also sparked legal justifications that are nowhere close to the premise of prevalence of the constitution over the state. Richard Posner’s “we are a nation under law, but first we are a nation” when defending the “malleability of law” in a text for The Atlantic in December 2001 speaks volumes of this point of view.  

It could be expected that contexts of crisis would be even more prone to sparking long-lasting constitutional change in countries whose deference to the constitution looks much less pronounced than in the United States. More likely still would it be if such changes took place in a country sharing more closely the Rechtsstaat tradition than the Anglo-American rule of law, where formal and informal constitutional change is commonplace,[9] and whose political leadership owns a deep authoritarian mindset. Brazil, which fulfills all those requirements, could figure not only as a country where emergency measures could further authoritarianism, but also as a case where “constitutional dismemberments” or the deconstitutionalization of core constitutional commitments could gain momentum.

Interestingly enough, Brazil is not enduring the typical abuse of emergency powers to further authoritarianism that has been taking place elsewhere during the COVID-19 crisis.  President Jair Bolsonaro, instead of seizing the moment to unite the country and gain political dividends through national leadership, adopted the risky strategy of denying the severity of the crisis. The Economist, for example, argued that, with such a posture, his “undermining of his own government’s efforts to contain the virus may mark the beginning of the end of his presidency.” There were rumors that he was consulting legal experts on the suitability of issuing a state of siege decree, but the Brazilian Bar Association rapidly reacted with well-based legal opinion denying the constitutionality of such a movement. Even if Bolsonaro wanted to issue an emergency decree, he would not have enough political backing in Congress and in the Supreme Court. As one of us previously argued, the irony is that despite “his authoritarian project, Bolsonaro is a president without enough powers, and a populist without enough people.”[10] His political isolation has been aggravated with the COVID-19 crisis, but it was already gaining ground before.[11]

However, from another perspective the COVID-19 crisis reveals the underlying movement beneath many recent developments in Brazil, including Jair Bolsonaro’s election as president: the “constitutional dismemberment” and de-constitutionalization of core constitutional commitments, which had accelerated since President Dilma Rouseff’s impeachment in 2016. A set of legal statutes and constitutional amendments have been drafted and approved that have increasingly affected the core social democratic principles set out in the constitutional text. Particularly overarching are changes in labor protection and social security,[12] but also other sectors such as education, culture, the protection of minorities, and health are being strongly underfunded as a consequence of some constitutional changes, particularly Constitutional Amendment n. 95, which set a public spending cap for twenty years.[13]

This movement, which one of us once called “de-constituent coup”[14], is now changing focus from a political crisis to an unexpected public health crisis as its driving force. The COVID-19 crisis has raised the emergency argument to advance further measures aimed at disrupting some constitutional protections. Other structural constitutional reforms, which were already being discussed in Congress, are also being pushed as necessary to compensate for the public spending needed to combat the COVID-19 crisis. Such constitutional changes have long been in the governmental agenda and various business sectors support them. In emergency times, they naturally see a window of opportunity to impose those long-term policies through constitutional changes and legal acts.

“Constitutional dismemberment” and the deconstitutionalization of core constitutional commitments during such critical junctures are not the typical emergency measures: they are not aimed at defending the constitution amid a circumstance of crisis, if well adopted, nor, on the contrary, do they express the long-sought-after avenue for authoritarians to strengthen their grip on power. They tend to be subtler, seemingly justified and better accepted as democratically grounded. However, they can be highly disruptive to the constitutional project, and may undermine fundamental consensus over the constitutional project in the heat of the moment and without any public debate. Emergencies favor strength over debate, emotions over rationality,[15] and thereby can be strategically powerful moments for those who see the constitution as a hindrance for their interests. Comparative constitutional law should observe such underlying developments during moments of crisis: they might not be that visible, but it is exactly their hidden nature that makes them so valuable to proponents of sweeping constitutional change.

Suggested citation: Cristiano Paixão & Juliano Zaiden Benvindo, Constitutional Dismemberment” and Strategic Deconstitutionalization in Times of Crisis: Beyond Emergency Powers, Int’l J. Const. L. Blog, Apr. 24, 2020, at: http://www.iconnectblog.com/2020/04/constitutional-dismemberment-and-strategic-deconstitutionalization-in-times-of-crisis-beyond-emergency-powers/

[1] See David Landau, ‘Abusive Constitutionalism’ (2013) 47 U.C.D. L. Rev. 189, 189-260.

[2] See also Kim Lane Scheppele,  Orban’s Emergency, VerfBlog, March 29, 2020, at: https://verfassungsblog.de/orbans-emergency/.

[3] Richard Albert, Constitutional Amendments: Making, Breaking, and Changing Constitutions, (Oxford University Press 2019) 14.

[4] See the various examples Richard Albert discusses in his book Constitutional Amendments: Making, Breaking, and Changing Constitutions, (Oxford University Press 2019) 76-92.

[5] Danilo Zolo, ’The Rule of Law: A Critical Reappraisal’ in Pietro Costa and Danilo Zolo (ed.), The Rule of Law: History, Theory and Criticism (Springer 2007) 11.

[6] ibid. p. 1

[7] ibid., p. 2

[8] Martin Krygier, ’Rule of Law (and Rechtsstaat)’ in James R Silkenat, James E Hickey, and Petr Barenboĭm (ed.), The Legal Doctrines of the Rule of Law and the Legal State (Rechtsstaat) (Springer 2014) 47.

[9] See Juliano Zaiden Benvindo, The Brazilian Constitutional Amendment Rate: A Culture of Change?, Int’l J. Const. L. Blog, Aug. 10, 2016, at: http://www.iconnectblog.com/2016/08/the-brazilian-constitutional-amendment-rate-a-culture-of-change/

[10] Juliano Zaiden Benvindo, The “Rationality of Fear” on the Edge of Brazilian Democracy: Another Shield Against Authoritarianism? Int’l J. Const. L. Blog, Dec. 31, 2019, at: http://www.iconnectblog.com/2019/12/the-rationality-of-fear-on-the-edge-of-brazilian-democracy-another-shield-against-authoritarianism/

[11] See Juliano Zaiden Benvindo, The Party Fragmentation Paradox in Brazil: A Shield Against Authoritarianism? Int’l J. Const. L. Blog, Oct. 24, 2019, at http://www.iconnectblog.com/2019/10/the-party-fragmentation-paradox-in-brazil-a-shield-against-authoritarianism/

[12] See Cristiano Paixão and Paulo Blair, Between Past and Future: The 30 Years of the Brazilian Constitution, Int’l J. Const. L. Blog, Oct. 10, 2018, at: http://www.iconnectblog.com/2018/10/between-past-and-future-the-30-years-of-thebrazilian-constitution/

[13] See Richard Albert, Constitutional Amendments: Making, Breaking, and Changing Constitutions, (Oxford University Press 2019) 63-64.

[14] Cristiano Paixão, Um Golpe Desconstituinte?, JOTA, May 12, 2016, at: https://www.jota.info/opiniao-e-analise/artigos/democracia-e-constituicao-um-golpe-desconstituinte-12052016

[15] See Jon Elster, ‘Forces and Mechanisms in the Constitution-Making Process’ (1995) 45 Duke Law Journal 364, 364.

Post originally published on I.CONnect.