João Carlos Souto, a Professor of Constitutional Law in Brasília, Brazil, compares the Brazilian and United States response to the pandemic with the commonalities of federalism...
Albert Camus, 20th-century French writer, published in 1956, the book “La Chute” (The Fall), achieving public success and criticism. A year later, in 1957, Camus received the Nobel Prize for Literature, for his work as a whole. La Chute is a monologue in which the character Jean-Baptiste Clamence, a lawyer, discusses his life and values, criticizing himself and society in general.
There are moments in the book that Clamence flogs Humanity and himself with particular acidity. In one of these moments, the narrator remembers tasting lobsters in a restaurant, sitting next to the sidewalk when a beggar starts to tease him. He calls the owner to drive him out, he tells the beggar that he is bothering people, “put yourself in the place of these ladies and gents.” Aloud the lawyer approves the attitude of the owner, whom he calls “justice administrator” and made it a point to make it clear to anyone who would listen, that he regretted that it was no longer possible to act like a certain Russian landowner whose character he admired. He would have a beating administered both to his peasants who bowed to him and to those who didn’t bow to him in order to punish a boldness he considered equally impudent in both cases.
Like the Russian in La Chute, the new Coronavirus has been whipping us all, indistinctly, in the four corners of the planet, with the exception of Antarctica. Since it first appeared in Wuhan, China, in December 2019, the virus has scared the world. Fast as a Formula 1 car, disconcerting as Neymar Jr.’s dribbling, accurate as King Lebron James’s aim; economically and psychologically devastating like hundreds of Katrinas and Andrews, all together, in one explosion.
Much has been said about COVID-19: country of origin, transmission, lungs, pneumonia, ventilators, economic damage, quarantine, and social distancing. There is another approach that also seems worthy of reflection, particularly in the United States and Brazil. I refer to two constitutional aspects, widely debated by the Founding Fathers at the far end of the 18th century: the control of the constitutionality of laws (judicial review) and federalism.
Federalism was exhaustively debated during the Philadelphia Convention in 1787 and later in the process of ratifying the Constitution. The United States was the first country in the world to implement it in a Fundamental Law. In 1889 a coup d’état overthrew the Brazilian Monarchy and, later, the 1891 Constitution instituted the Republic and the Federation, both inspired by the North American model. Since then, Brazil has been a Republic, not always democratic, and a Federal State, which at some point in our history has disrespected the autonomy of States, a corollary of any Federation.
Although Judicial Review was not mentioned in the Federal Constitution, it was implemented a short time after by the Supreme Court (Marbury v. Madison, 1803), as a natural consequence of the Separation of the Powers and attributions of the Judiciary, according to the lesson of John Marshall, in what is the most cited decision in the history of world constitutionalism and which was and continues to be fundamental for the Judiciary to function as the Guardian of the Constitution. The 1787 Convention and the Marbury v. Madison decision, are among the most significant events in American history.
Brazil and the U.S. witnessed their Presidents, Bolsonaro and Trump, downplaying the severity of the pandemic in the early days of the spread in both countries. In the largest country in South America, the President has been emphatic, publicly advocating to reopen the shops, malls, schools, everything, even launching a media campaigning in support of his beliefs (Brazil Can’t Stop/Brasil não pode parar). The attempt was unsuccessful and precisely because of the central theme of this article: judicial review and federalism. The associate justices Luis Barroso and Alexandre de Moraes rejected official acts of the Executive Branch, as they deemed not to comply with the Constitution. The first established, by monocratic decision, that the Federal Government media campaigning against the social distancing was not allowed due to the pandemic. Justice Moraes forbade the federal government to suspend state government administrative decisions.
In addition, the Chief Justice, Dias Toffoli, took on a relevant role, mediating the crisis that ensued between the Legislature and the Executive, especially when Covid-19 began to spread.
It has not been the “hidroxicloroquina” that has kept Brazil and U.S. far from an even greater disgrace, it has been dedicated workers from health services, cleaning, security, and truck drivers, among others. And ultimately, the different levels of government, states, and municipalities, which have taken on much of the responsibility and implemented measures such as the closing of businesses and the social distancing that has been practiced in many countries of the world. The conception of the Federal State, the autonomy advocated by James Madison and Alexander Hamilton, among others, are proving to be effective.
In all of this crisis, there is a pleasant irony. 18th-century legal “remedies,” implemented in the 1787 United States Constitution and replicated in other countries’ constitutions, such as the Brazilian one, have been important in preventing both presidents from committing even more foolishness.
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João Carlos Souto, Professor of Constitutional Law (Centro Universitário UDF-Brasília-Brazil), S.J.D. student (CEUB-Brasília), Attorney of the National Treasury and author of the book “Suprema Corte dos Estados Unidos – Principais Decisões (Atlas, 3a edição, 2019).
Suggested citation: João Carlos Souto, Constitutional Values in Brazil and the US in Times of Coronavirus, JURIST – Academic Commentary, August 3, 2020, https://www.jurist.org/commentary/2020/08/joao-carlos-souto-constitutional-values-covid19/.
This article was prepared for publication by Brianna Bell, a JURIST Staff Editor. Please direct any questions or comments to her at email@example.com.
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