Genetics of the Constitution

D. Pedro versus Frei Caneca

Abstract

This article analyzes what has come to be known as Brazilian constitutionalism. It focuses on the “genetics” of the first Brazilian Constitution during the period from 1821 to 1824. This phase is characterized by competition between various constitutional projects, such as the Portuguese Constitution of 1822, the draft made by the 1823 Constituent Assembly — the “Mandioca” Constitution — and, specifically, Frei Caneca’s project for the Constitution of the Confederation of the Equator. We understand that these projects are driven by both desire and fear — mutually. Frei Caneca desired a liberal Constitution and feared the Constitution of Emperor Pedro I, fearing the arbitrariness, oppression, and concentration of power it promoted. The emperor, on the other hand, desired a Constitution that would grant him power and feared the fragmentation of the territory, the discontinuity of the dynasty and the displeasure of the elites. We refer to this as the genetics of laws. We employ Frei Caneca’s concept of the Constitution as the “Minute of the Social Pact.” We also make some comparisons between the agenda of that time and those faced by the Brazilian Republican Constitution of 1988, noting certain breaks and continuities over these two hundred years.