Adoption of Federalism in 1891: Portuguese-Brazilian

Monarchical Constitutionalism and the United States

of Brazil.

By José Ernesto Pimentel, Fh.

Professor at the Federal University of Paraiba, Joao Pessoa, Brazil.

THIS PAPER WAS PREPARED AS AN ESSENTIAL PART OF THE MEMORIAL FOR GRANTING THE TITLE OF
PROFESSOR TITULAR THAT WILL BE HELD IN JOAO PESSOA, PARAIBA STATE, BRAZIL, AT THE UFPB ON
NOVEMBER 30TH, 2018. AN ORAL PRESENTATION OF IT WAS PREPARED FOR THE ANNUAL MEETING OF THE
AMERICAN SOCIETY FOR LEGAL HISTORY IN HOUSTON, TEXAS, NOVEMBER 8TH TO 11TH, 2018.

Abstract: When the Republic was inaugurated in Brazil after the coup
against the monarchy in 1889, the United States of Brazil became the official
name of the country. Decrees established this form of government ratified
through the constitutional convention in 1891. This paper analyzes how
federalism, inspired by the United States of America, was adopted by the
newly proclaimed regime which replaced the unitarian state of the Empire.
For that, rulers and politicians must have taken into account the traditions of
administration and legal institutions even though they did not wish to do it
expressly. The Army was surveilling society, especially people considered to
be enemies of the new order. There was no independent press while the
values of notability were imposed as ways to achieve supposed optimal
institutions. The judiciary became stronger after the end of the Empire. If
judicial review became a powerful device during the Brazilian Republican
History, was the control of constitutionality invented along the period? To
what extent did American federalism truly inspire Brazil? Was the new rule
of law an advance for civil rights in the country? Can we compare the
economic results obtained under the Old Republic to the evolvement of civil
and political rights? In particular, it focuses on the political process of the
making of the Republic.

1. Introduction
The monarchical regime in Brazil fell precipitated by the revolutionary acts of
the military body. First off, we should acknowledge in the big picture that society had
been influenced by new ideas such as positivism and republicanism. A large social
sector shared them in upper classes. Strong changes in social mentality had come out in
the decades since the 1870s. The power of the Army, dictatorship, anti-clericalism, and
anti-slavery were core themes responsible for the lack of confidence in the kingship
insofar as both the emperor and the Council of State had been having difficulties to be
active protagonists of new policies that could expand governmental social support.

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Dictatorship easily matched the absence of the empowerment of people acting in self-
government as a constitutional value, i.e., in a broad sense as an identity of the Brazilian
political community long since.
There was not a large number of people in fully engaged citizenship. With the
electoral reform of 1881, the number of voters decreased sharply from 10% of men to
just 1%. The monarchy dropped down in inertia and had no animus for a revitalization
since the emperor himself seemed to be incapable of reanimating politics in favor of
monarchy. The most dynamic economic sectors, like urban actors and especially the
Republican Party in São Paulo, felt uncomfortable with what they called the Old
Regime.
The chair of the cabinet, Viscount of Ouro Preto, proposed a plan in favor of the
political recovery of the regime but did not receive the support of public opinion. There
was also a legal, structural problem: the constitution had no grounds on self-
government, so they believe more and more in illustrating government without checks
and balances. In society, positivist circles could accept coups and dictatorship once
managed by savant and powerful men. They were unable to believe that a population
composed of slaves, illiterate people and poor could govern themselves. The Army had
achieved a greater power after the Paraguayan War. This event itself was symbolic for
an Empire that fought for the maintenance of slavery (Grinberg, 2017) and sovereignty
winning a war that demoralized all the reputation supposed granted to the emperor.
Only the Army gained in respect and honor, becoming appreciated for what those men
were able to do during the conflict. No effective renovation on the national issues makes
the vacuum fulfilled by the new regime while the old one had a central power
considered to be heavy, hence moving slowly in reforms. An unexpected fall of the
Cabinet gave room to the emergence of the Republic.
The general comprehension of English was deficient in the population, but some
literate members of the intellectual elite had been reading English as much as they left
aside Latin trying to equate the former one to French. Since the United States of
America was already a remarkable economy with strong political power in the
Americas, some more progressive intellectuals wanted to imitate their institutions in
spite that the knowledge of them was fragile. There was no demonstration that the
intelligentsia and law schools at that time had built great scholarship to understand the
history of the USA. Among the representatives in the lower house, records demonstrate
a low personal background in the matter. This way, they copied American institutions

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adapting them to the values and administrative qualities of the Monarchy keeping
political and civil rights untouched.

2. Interpretations from Historiography

The Americas published a special number in 1991 about the advent of the
Republic in Brazil. That time, there was no clear comprehension about the motivations
of the historical characters for the military coup that defeated the Monarchy. It
inaugurated the Brazilian Republic inspired on the American federalism. Joan Meznar
explained the negative ways that should be refused in possible scholarly interpretations.
It was not reasonable to see the coup as a revolution since only a specific sector actively
performed the events. “The pantheon of republican heroes did not emerge from support
of the people.” (Meznar, 1991: 273.)
José Murilo de Carvalho established the most acute argument in the sense of
showing that the regime was established with no participation of the people. He
describes how the republican movement was an expression of shifting ideas since the
1870s, especially connections with the abolitionist movement. Although Carvalho
highlights aspects of the construction of the state in Brazil, he also thinks the
centralization of the administration on court’s hands was a difficult matter. The Liberal
Party did not succeed in fixing such difficulties. “Electoral participation, which was
around ten percent of the population in 1872, was reduced to less than one percent by
the electoral reform of 1881.” (Carvalho, 1991: 141)
At the level of the events connected to political history, militaries were the real
actors of the coup because civilians were not allowed to take part in unless running a
secondary role. J. Carvalho highlighted the point that the regent, a woman, the princess
Isabel, was not a competent ruler. He did not explain it as a gender issue, however. One
important aspect of Carvalho’s work is the use of art in his analysis. In this way, the
picture of Henrique Bernardelli was viewed as the victory of deodoristas. He also built
interpretations drawn upon public statuary. The ideals of Positivism were crucial in
understanding how the movement spread thoughts against the representative
democracy. The article analyses three biographies: Deodoro, Constant, and Bocaiuva.
In the last part of his study, José Carvalho features groups and ideologies
surrounding the coup of the 15 th of November, 1889. Although his comments on the
United States model are general, it is patent that the American model was chiefly given
to the liberal group of landowners of São Paulo. The author did not propose any deep

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comparative view between the debates undertaken in the USA and Brazil considering
the making of federalism. He did not analyze how the USA was depicted in Brazil as
well as to what extent politicians were aware of the sharp differences in their political
institutions.
Two political groups of monarchists appeared in that context, the restorationists
and neo-republicans. Maria de Lourdes Jannotti (1991) approached those tendencies
featuring the turmoil that characterized the Republic’s making. The new regime was
based on violence as it was demonstrated by the article of Suely Reis Robles de Queiros
(1991), “Reflections on Brazilian Jacobinism of the First Decade of the Republic (1893-
1897)” at the same number of The Americas.

The use of weapons was spread across the country, but they had no connections
to citizen empowerment as was the case for the second amendment to the US
Constitution as commented by Jack Rakove: “That neglect, in turn, would make it easier
for the ‘standing army’ Congress would control to trample the reserved rights of citizens
and states.” (Rakove, 2009: 226) Brazil did not experience any constitutional value
similar to the people’s empowerment hence “We the people…” was not a constitutional
ground for the Brazilian state. For instance, the right to vote, or anything similar to the
second amendment in the U.S.A. was absent. Robert Levine also published an article in
that edition analyzing Canudos which was a vicious war on behalf of the Republic with
extreme violence against the poor at the arraial where Antonio Conselheiro gathered
thousands of people armed in defense of their communitarian rights. They were killed
by three campaigns undertaken by the Army under the argument of saving the Republic.
The public force and guns had been used only in favor of the elites supporting the same
legal structure of the imperial power established in 1822 and 1824.

The 1990s were a time to think about political democracy, public policies, and
disarmament. Such matters of discussion – just some years after 1984 when the Nova
República was inaugurated – led to questioning the role of the Brazilian Army, the
Statute of Disarmament in 2003, and the referendum of 2005. Nobody raised the
question about the monopoly on violence because those reflections were not on the
intellectual spectrum at the time of the publication, also for the problem did not exist as
a constitutional debate in the nineteenth century Brazil. This paper will not focus on it
either, except to the extent the subject is indirectly important considering the latter

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dimension. It would have required research project with another scope of approach that
goes beyond the purpose of this paper.

For Christian E. C. Lynch, it is necessary to understand the discussion about

how the monarchy switched to a republic in Brazil from a broad understanding of
constitutional shifts in Argentina and Chile. “It was the extraordinary economic boom
experienced by Argentina during the 1880s, coupled with the problem of the crisis of
succession of Dom Pedro II, which allowed a good part of the Brazilian elites that the
US federative model could work in Brazil.” (Lynch, 2012: 154.)

Marcelo Casseb Continentino concluded his book about control of

constitutionality approaching what he called as the myth of Rui Barbosa. That last part
of the book opens doors to new understandings in constitutional history beyond a
biography: “To insist, therefore, that the control of constitutionality was introduced by
the genius of Rui Barbosa would be a statement as generic as imprecise, as well as
historically improper.” (Casseb, 2015: 414) Jorge Caldeira (2017) presented last year
what he considers an econometric view on the History of Brazil. In doing so, he
explored economic aspects of the decisions taken by Rui Barbosa on the 17th of January
1890. That set of measures enacted by Rui Barbosa, and authorized by the dictator
Deodoro da Fonseca, made Brazil moving towards a liberal economy precipitating
decisions in favor of industrialization. Elisabete Leal (2014) described the florianism in
Brazil on the study about a devotee called Agostinho Raimundo Gomes de Castro. She
analyzed the movement through the most important events from 1891 to 1904.

Numerous electronic sources are available what may give to the researcher
opportunities for new approaches considering all the facilities of investigation today.
The reprinted version of O Advento da Ditadura Militar no Brasil, written by the
Viscount of Ouro Preto (2017) and published in 1891, was used as well as the book
Estudos Práticos, written by the Viscount of Uruguay (1865).

3. Coup and Convention

On the 24th of May 1888, one of the most radical militants of the republican
movement in São Paulo spoke out to the audience of the Congress of the Party. He
explained during that famous talk his recent engagement in a stronger opposition,
“revolutionary attitude,” against the princess Isabel and her husband count D’Eu. It was
his struggle against the advent of a Third Empire. Since the beginning of that year more

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and more people had been gathered in hundreds up to two thousand to listen to his
words.
His primary interest was connected to the idea of secession of the province of
São Paulo from Brazil considering a possible uprising against the Empire. However, he
advocated in favor of either the shaping of the Patria Paulista or the Brazilian Republic.
This way, the United States of America appeared as hope for federalism in a country
with a similar dimension to Brazil. History was a word of political rhetoric, “According
to historical observation…” (Jardim, 1888: 706) Silva Jardim’s address did not mention
“democracy” or “checks and balances.” “Above all else, what am I? A Republican.
Above all what are we? Republicans, patriotic. Therefore above all what are we? At
present, we are adversaries, even enemies, of the Monarchy in our country.”1 (Jardim,
1888: 706) Republic meant patriotic feelings for him, not a system in which institutions
could work as a constitutional machine for the participation of the people. Self-
government and competition of powers were absent amongst the opinion of the
Republican Party.
That day on his speech, Antônio da Silva Jardim did not make a single quotation
on The Federalist Papers or other similar intellectual construction. Monarchy was
considered to be a social danger for reasons which derived from the fear of political
instability, accusing the next years of Isabel as the domain of the military tyranny of
count D’Eu. An old regime, new attitude: “tyranny to the fortune, tyranny to work, and
tyranny to freedom of speech: exorbitant tax, forced recruitment, and persecution to
opinions.” When the advent of the Republic came out, Silva Jardim was entirely
excluded from the setting process of the regime, dying in Italy two years later
swallowed by a Vesuvio’s gap.
There is no record that Antonio Jardim would have studied English, but French.
His positivism was apparent. It might have been a surprise if Antonio Jardim had
supported self-government in case of participation in new government. With his
enthusiasm for Auguste Comte in 1881, the abolitionist was in favor of dictatorship, and
people should perform a revolutionary act but without outcomes regarding a deep
change towards democracy. The people’s role doesn’t seem to go beyond. The problems
of the Empire were described as revolutionaries did on the eve of the French Revolution

1
In the original: “Mas, o que acima de tudo sou, é republicano; o que acima de tudo nós somos, é
republicanos, é patriotas; o que portanto, acima de tudo nós somos, é adversarios, actualmente inimigos
mesmo, da Monarchia em nosso Paíz.”

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trying to regain the splendor of the Kingdom of France with a constitution, Jardim
wanted the order to make whether Brazil or São Paulo a powerful nation:

But is it true that Monarchy is incompetent to guarantee order? That the

provinces are in the process of disintegration, and revolt? That authority is
disrespected? That property is tricked? That the villages are victims of
turmoil? That they are not policed? That the forces are undisciplined?

Antonio Jardim wished everything but the Monarchy. The activist had been
engaged in a struggle for the abolition of slavery and even helped people fleeing out of
master’s domains. Although his commitments to anti-slavery politics, he did not hesitate
to call the agrarian sector to be in favor of the Republic with conservative arguments
about the end of slavery: “the monarchy did the good, but betrayed the farm work.”
(Jardim, 1888: 714) For him, landlords had been hurt by monarchy since the regime did
not prepare an adequate way for the abolition. Another reasoning was about a fervent
Catholic woman as the queen, an idea that was not accepted in the Republican opinion
for two reasons. On the one hand, because of the opposition to the traditionalism of a
dynasty, but on the other hand a question of gender. Antonio Jardim asked: “Is right or
not that the dynasty of Bragança does not present a man to take the crown?” (Jardim,
1888: 712.)
There was no other goal but make a more effective government with no
inspirations on the Founding Fathers who seemed to be ignored by that radical Brazilian
positivists. Antonio Silva Jardim denounced three points against the monarchy in its
new step with count D’Eu: the domain of militarism, of rich people (called
“argentarismo”), and of clericalism. The Republic carried out a similar project in spite
of such an alert. It made real the world of the tyranny in a continental country replacing
an aristocracy by an oligarchy. Antonio Silva was a radical, considered by historians as
the most favorable to people’s engagement.
Democracy or Tyranny? On the 15th of November 1889, came out the decree.
The foundations of the Republic in hard times; making of federalism in just one day?
First off, a decree during a day of an ongoing uprising against the monarchy had a
precise meaning. In spite of being a well-known document, the text is plenty of
significance. Therein the provisory administration ordained and established the country
shall be a federative republic by proclamation and decree without a constitution as it is
read in the articles first and second. In this context without the rule of law, without a

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legal framework, the decree meant an ordainment, made by the Marshal. It was issued
to be obeyed by everyone under the threat of the Army. Miguel Lemos and Teixeira
Mendes wrote in a letter to Benjamin Constant that was necessary to avoid democratic
republicanism. They added that was necessary to establish the republican dictatorship.
(Caldeira, 2017: 305.) Everything was planned before by the high circles of the new
regime. Hence the consensus on themes like power, State and the rule of law – known
that time in Brazil as “império da lei.” After the abolition of slavery, activists
understood that the Republic would be a reality soon as a natural outcome.

Everything could be called into question but nothing in favor of plurality and
freedom of speech. In such an ambiance a publication like The Federalist Papers would
be impossible. There was no chance for anti-federalism, anti-America, anti-Republic,
partisans against the institution of the maintenance of the Senate were suffocated during
the convention, no anti was possible. The Army took the bridles of state power
producing an absolute power in which the word democracy meant just a state’s
concession. The dissolute as well as discredited political structure, supposed to be weak
because of the institution of the monarchy, was replaced by an apparent more
democratic regime for some. However, the administration became in short time a
tyranny in which self-government was almost entirely ignored. The Republic kept alive
essential values of the Empire. The president could pick the secretaries and high staff up
as he wished with no checks from the Senate. It was a “no checks, no balances” system?
It remains somehow until today. The president is a kind of king at the office.

A note written by Ruy Barbosa published in the newspaper Século, on the 19th of
December of 1889, was copied by Afonso Celso, the Viscount of Ouro Preto (2017). In
it, Barbosa celebrated the end the parties and freedom of speech as progressive aspects
of the new order saying that a spontaneous will motivated the unanimous decision
among opponents who quickly became collaborators:

It is said that the motivation of revolution is futile. However, these motives

produced such a result and were so universal in the nation that liberal and
conservative parties declared themselves dissolved. The newspapers of these
parties ceased their publication; there remains only one organ of Ouro Preto,
an interpreter of the personal passions of this statesman, who states that if his
reforms had taken place, they would stand in the way of the revolution.

(…)

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 Rui Barbosa, Finance Minister

The political elite was constantly afraid of factions, and they avoided any move
towards such a direction threatening the country’s fragmentation. The most critical
point for the political society of the time – Rui Barbosa said at the Parliament ten years
before the advent of the Republic – was to keep the unity of the territory as a heritage
from the imperial past. Those words were in favor of the Liberal Party of which he took
part. “If at the first setbacks, inevitable in all situations, this solid harmony of ours had
been wandered off to break into dissenting parties (…) there would be no applause to
our independence, but derision; a deserved derision.” (Barbosa, 1999: 77) Rui Barbosa
is an illustrious character for his scholarly skills, especially in English.

The parliamentary majority was substance and political support of the power, an
argument found in the Stuart Mill’s famous book translated into Portuguese at the time,
Governo Representativo, or Considerations on Representative Government. Making
comments about England based on Bagehot, he criticized the constitution of 1824
observing that it recognizes the Lower Chamber and the cabinet but expressly does not
foresee that this former will be an elective delegation of the latter. The constitution did
not establish that the cabinet will necessarily come out, as it must, from the
parliamentary majority. The bad design of the parliamentary power was the key to solve
the problem. In England, the Executive Branch was strictly the work of the popular
chamber with no similar provision in the monarchical Brazilian constitution. The
monarch has eclipsed himself – thought Rui Barbosa about the common law in England
– under the chairman of the council, personification of the Commons, who is the arbiter
in politics and administration. (Barbosa, 1999: 35)

The essential message of 1879 was for the “sincere foundation of the
parliamentary monarchy through radically new electoral institutions.” (Barbosa, 1999:
76) Rui Barbosa’s project was forgotten with the proclamation of the Republic, in spite
of a considerable augmentation of his reputation taking part in the committee of five in
the provisory government before the making of the constitutional convention. The
empire did not reform the electoral system towards a broader democracy combined with
a more evolved constitutional parliamentary system, when in fact the Empire did get
worse in the matter.

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 It is read in the constitution of 1824, article 101, line forth, that the emperor, as
Reserve Power, had the authority in appointing and dismissing the secretaries of the
administration. The U.S. Constitution, Article II, Section 2, Clause 2, requires the
confirmation of the Senate for main officers, including the Cabinet of presidential
secretaries. The Constitution of the United States of Brazil, albeit inspired by the U.S.
Constitution, entirely forgot the Appointments Clause. The text kept intact the
constitution of 1824 vesting the presidential office with the powers of the old emperor
in the article 48, line 2: “The President of the Republic shall be exclusively responsible:
(…) to freely appoint and dismiss the Ministers of State.” The House of the people had
no power before the president for that matter.

At the end of his address of 1879, Rui Barbosa had said quoting one of the
founders of Italy2: “Do not fear to diminish the strength of the constitutional throne.”
(Barbosa, 1999: 77) And added: “In all this, the Liberal Party will not forget its
commitments, will not forget that its voluntary omission would be an inevitable
suicide.” (Barbosa, 1999: 77) The death of the Liberal Party came out with the
Republic. Rui Barbosa himself expressed it meant a democratic decision taken by the
old parties after the coup of the 15th of November 1889. The president had more
powers than the old king, and quickly the Republic evolved from a dictatorship to a
tyranny, first under the hands of Marshal Deodoro da Fonseca and later, under Floriano
Peixoto’s hands.

Some at the constitutional convention of 1890 considered being just simple

formalism what were essential points of federalism while they attributed great substance
to names which were nothing more than charming words for old structures, institutions,
and practices made up by the Empire. Three foreign constitutions served as grounds for
the 1891 Constitution, that from the USA, Argentina, and Switzerland. There were no
universities or colleges, just some faculties in Law and Medicine combined with
informal intellectual circles amongst elites of urban centers of the country. People were
not accustomed to seeing a broad, strong debate on political history. Newspapers were
read for a small part of the population, most living in towns and cities. English was a
language rarely spoken by people since the Empire gave priority to Latin and French.

2
It is probably a quotation from Giuseppe Mazzini.

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 The fiat of the proclamation solved everything for everyone in collaboration
with the Republic. The friendship with the dictator, Marshal Deodoro da Fonseca, was
crucial for having a decree accepted and enacted (Caldeira, 2017: 301-317). In the
article second of the Constitution, provinces became federal states; presidents became
governors in the article fourth, the Município Neutro replaced the monarchical Court in
the article tenth. Beyond concerns about economic growth and the transportation of
goods, the provisory government had no innovative ideas. They just wanted to imitate
what was considered to be good in the most advanced nations, the United States
particularly. In the new times, they were inclined to replace Portugal, France, England
as models for America.

The nominalism of the Republican revolution was pretty evident as much as

simplistic. The members of the provisory administration did imitate forms of the
American Government. They also added formulas taken from the philosophical
positivism of Auguste Comte matching it with all framework given by the Brazilian-
Portuguese monarchical family and old traditions established in the country. Nothing
actually crucial towards the construction of constitutional values drawn on self-
government changed in public administration, but names which they borrowed from
America were used to establish the Republican nomenclature.

It is important to add that not necessarily the model of America came to Brazil
without a political climate in Latin America, as well-argued by Christian E. C. Lynch:
“It was in the oligarchic mirror of the platinum republic that the Brazilian aristocracy
could see the possibility of a Yankee democracy.” (Lynch, 2012: 153) Since Argentina
had adjusted its constitution to the US Constitution between 1853 and 1860, the model
became more attractive to the Brazilian reality in certain ways. Juan Bautista Alberdi
wiped off the core values of the US Constitution to impose stability favorable to
economic growth drawn upon authoritarian measures like the State of Siege.

4. Legal Traditions and Constitutional Review

The historiography in Legal History has sometimes ignored the constitutional
experience of the Empire, especially the review of laws according to the constitution.
“The constitutional and political experience produced in the time of the Empire has
been wasted by constitutional historiography.” (Casseb, 2015: 400.) It is important to
add the historical and cultural background to the present analysis of law, not only

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regarding Legal History but as a means of interpretation in courts. Scholars have given
too much attention the Republican period what leads us not to understand the rich
learning offered by the monarchical times. The Brazilian constitutional control of laws
has been viewed as a Republican creation with the Decree 848 of the 11th of October
1890, the provisory constitution through the Decree 510 of the 22 nd of June 1890, and
constitution established by the convention of 1890, which ended in February of the
following year. However, it takes a long history going back to monarchical legal
tradition.
Core principals of the Republic were based on the existence of living dimensions
in culture, politics, society, and legal framework which could not have been erased
overnight with the military coup, in spite of the agency of its protagonists for that
purpose of historical forgetting. Decisions made about legal institutions and rules
whether remained or suppressed were strongly connected to legal practices used during
the Empire. They can be understood ignoring the previous history in an ambiance so
distant from the Brazilian-Portuguese tradition of making law. The Empire was the
space in which the Republic emerged as an effective reality.
Federalism, for instance, is a fact barely connected to the United States of
America, a distant and strange country for Brazilians that time. The autonomy of São
Paulo and Minas with its economic forces could be strongly developed considering the
necessity to solve problems pragmatically. The experience of autonomy has roots in the
Additional Act of 1834. Brazil experienced a complex mechanism of laws review
during the Empire. It was formally inserted in the legal framework. This way, it is not
right to speak about a work of genius in the Constitution of 1891 for such a legal matter.
The provincial governor could veto a law or resolution established by the
Provincial Assembly based on the Additional Act of 1834, article 15 3. The argument
was simply the authority of the governor’s power, i.e., the president of the province, to
refuse the law for its inconvenience. However, it is not an act of self-government
because provincial president ruled as an icon of the emperor in the local ruling hence
appointed by the monarch. Nonetheless, the proceedings established the self-
government seeing that the final word was given to the Assembly, which could overturn
the veto for 2/3 vote. The Act also provided a veto on provincial laws based on the

3
See Casseb, 2015, chapter 6 and conclusion.

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failure to abide the constitution, articles 16 and 24. In this kind of control, the General
Assembly of the Empire, i.e., the lower house, was competent to judge the matter.
The imperial administration could review acts in case of delay from the General
Assembly in fulfilling its legal role. Whenever it happened, there was an immense
discomfort because of the absence of constitutional provision. What to do on the
assumption that an act has failed to comply with the constitution? As is well known, the
Brazilian Empire had lengthy legal wrangles about alien rules verifying to which extent
new norms from western countries were good for the country. The political staff was
not disconnected from what was happening in the USA. In the 1860s, some cogitated of
implementing the judicial review, but the Viscount of Uruguay refused what he called
as the American remedy – corretivo Americano if translated into Portuguese. His book,
Estudos Práticos sobre a Administração das Províncias, was published in 1865.
The making of the Brazilian State came from a confluence between medieval
Christian political values and modernization in the Western. The Catholic and Imperial
Constitution of 1824 provided the organization of the judiciary branch shaped according
to the values of that time, breaking the colonial heritage. The Brazilian Constitution
featured an influence predominantly from France, but the Anglo-Saxon world was not
wholly ignored. It meant undertaking a system of justice that should be set-up over the
following years.
The verification of the legality of legislation was enforced imperfectly by an
additional superior court independent of the first and second instance, the so-called
Supreme Court of Justice. This systemic structure should not be confused with the
organization of the contemporary judiciary in Brazil since the Supremo Tribunal de
Justiça was neither at the last level of decision nor was there any jurisdiction on control
of constitutionality as it is the case for the Federal Supreme Court today.
The Supreme Court of Justice performed the advisory control of legality and was
subordinate to the power of the emperor. Although the constitution foresaw the review
of the decisions of the Court of Relação, the competence as a third level of the decision
was absent. Once the Supreme Court of Justice had carried out a review, it returned the
process to the Court of Relação: "This one was not obliged to follow the understanding
of the Supreme" (Lopes, 2010: 93-94).
Amongst the activities of the Third Council of State (1841-1889) of the Empire
the control of constitutionality and jurisprudence was included. He informed the
Moderating Power about his supreme decisions. Divided into committees called

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"sections", it had general assemblies called "plenary." The Council thus acted: "It was in
legal matters, that is to say, questions whose answers depended on the immediate
application of a pre-existing legal rule." (Lopes, 2010: 116) In this way, the Moderating
Power maintained the constitutional limits of the laws and even conferred on the
Council of State the binding power of jurisprudence, although it was denied at that time
that the activity of the councilors was interpretive.

5. Conclusion: Lack of Grounds on Self-Government

An understanding of the Brazilian federalism must consider transnational legal
dimensions of the problem. Legal pluralism is crucial since the solutions found to make
the Republic from 1889 onwards were inspired in the monarchical government itself, in
the United States, Switzerland, and influences from neighbor countries in Latin
America, especially Argentina. Politicians did not at all understand the most important
thing, the constitutional value of "We the people…" as an expression of self-
government at the time. This paper is only a partial conclusion of the research hence
future outcomes will be possible.

6. References

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