1988 Constitution a decade later: Ugly compromises reconsidered, The

Journal of Interamerican Studies and World Affairs, Winter 1998 by Reich, Gary M

October 1998 marked the tenth anniversary of the promulgation of Brazil's most recent democratic constitution-and the debates about how to reform that same constitution have been going on just as long. The continuing efforts at constitutional reform in Brazil suggest the gravity of institutional choice in new democracies. The importance of "getting institutions right" is underscored, in political science, by the notion that institutional choices can undermine or solidify democratic rule.

The time-consuming amendment efforts that President Fernando Henrique Cardoso is currently undertaking have reinforced the view among academics, policy makers, and journalists that the 1988 Constitution is a failure-a jumble of institutional contradictions that undermines governability. Critics note that the initial call for a constituent assembly was motivated by political demands that collided with the institutional imperatives of democratization (Martinez-Lara 1996: 191). The document itself is rife with contradictions, such as the following:

Statist provisions, such as guaranteed job stability in the public sector and restriction on foreign ownership in key sectors of the economy, that contradict the imperatives of economic growth and stability (see, e.g., Economist Intelligence Unit 1997).

Transfer of federal revenue to state and local governments without a transfer of administrative responsibilities, which opened the floodgates for corruption and mismanagement.

Preservation of a presidential system, which clashes with the task of governability, especially given the tendency toward party fragmentation (Lamounier 1994).

These contradictions are generally seen as a direct result of empowering the National Congress, which served as the National Constituent Assembly (Assembleia Nacional Constituinte, ANC), to produce the country's magna carta, thereby allowing institutional choices to fall hostage to political intrigues. The result is a badly written, internally inconsistent, and transient constitution that, a decade after its promulgation, still generates debates about institutional design (Power 1997, Rosenn 1990).

By standards of coherence and clarity, the 1988 Constitution is undeniably a supremely ugly document. Those standards, however, offer a narrow perspective for evaluation-a perspective that is reinforced by two institutionalist notions underlying much recent research about democratic transitions. The first notion is the assumption that institutions can be treated as exogenous constraints on behavior. Thus it follows that good constitutions are those that create the "correct" set of constraints. The second notion is that the process of creating democratic institutions can and should be divorced from "politics," usually understood as the lobbying and logrolling that are often a staple of legislative activity. In this view, institutional design is the domain of enlightened legal minds that, toiling above the grit and grime of politics, craft constitutions that endure for generations.

By way of challenging these notions, this essay offers a general reconsideration of constitution making in new democracies and, in particular, a reappraisal of the 1988 Brazilian constitution. It focuses on two broad themes. First, if politics is fundamentally the authoritative allocation of value, then constitutions are inescapably political, for they determine the allocation and scope of state authority. The distributive impact of constitutions politicizes institutional choices, for these choices invariably affect which actors will have power and what kinds of policy changes are possible. Therefore, as long as political actors have differing preferences, institution making generates a compliance problem: how to create a constitutional process that becomes a self-enforcing constraint on the behavior of all relevant actors. The need to resolve this fundamental and politically explosive compliance problem does not necessarily lend itself to the creation of finely honed legal texts.

Second, the resolution of the compliance problem is especially challenging when democratic constitutions are the product of bargaining within the fluid structure of a regime transition. Under these conditions, the signals that might make constitutional choices apparent-such as the presence of dominant actors, comprehensive information about the bargaining strength of a faction or its adversary, common knowledge of the parameters of institutional change-are absent or distorted. Instead, choices are the product of trial and error, heavily influenced by the uncertainties of collective action, strategic gambles, and unanticipated events. Given these challenges, negotiating specific constitutional provisions brings the dangers of, on the one hand, an endless cycle of constitutional choices, and on the other hand, regime breakdown.

This theoretical discussion highlights the tremendous challenge of creating constitutions via bargaining, especially in a heterogeneous society, such as Brazil, that is undergoing profound political and economic transformation. It suggests that the Brazilian constitution should be viewed not just as a work of failed political engineering but also as a complex and relatively successful social truce. This truce came out of a process in which society's most important actors argued, cajoled, and threatened one another, finally arriving at an ugly set of compromises that nevertheless skirted the explosive issues surrounding the transition from the military regime (which ruled from 1964 to 1985) to democratic rule and established a meaningful forum in which to debate subsequent institutional changes.