Freedom and Federalism: Toward an Authentic Federalism in Brazil

Below is the conference paper presented by our WALTA President, Professor Augusto Zimmermann, at the III Forum Federalista Nacional (Brazil, 23 October 2020)

By Augusto Zimmermann*

First Considerations

The first federal states emerged via the coming together of a number of established polities that wished to preserve their separate identities and to some extent their autonomy.[1] Some features are common to most, if not all, federal systems: distribution of power between central and local governments; a written and rigid constitution; an independent and impartial umpire to decide on disputes between these levels of government; and representation of regional views within the central government. 

The type of decentralisation provided by federalism is in contrast to a unitary system of government. Although there might be regional units in unitary systems, any authority vested in them is delegated by the central government. It may therefore be resumed by the central government. By contrast, the essence of the federal system of government is the notion of divided government authority. In federal systems, the regions enjoy a great degree of political autonomy derived directly from the federal Constitution, and not from the central government.

A federal constitution is one fundamental document which expressly divides power between a central government and the regional governments. The basic feature of federalism is therefore the rigid separation of powers between central and regional governments, in such a way that each of them cannot encroach upon the power of another. A V Dicey explained:

The object for which a federal state is formed involves a division of authority between the national government and the separate States. The powers given to the nation form in effect so many limitations upon the authority of the separate States, and as it is not intended that the central government should have the opportunity of encroaching upon the rights retained by the States, its sphere of action necessarily becomes the object of rigorous definition. [2]  

Because such a rigid division of politically autonomous tiers of government is federalism’s most distinguished feature, it follows that the constitution of a federal system is, in a very special sense, a fundamental law that cannot be amended by ordinary means. As noted by James MacPherson, a judge of the Court of Appeal for Ontario (Canada), ‘because federalism is a system of government premised on divided powers, it is consistent with the very essence of modern constitutionalism – limited government under the rule of law’.[3] Such a constitution cannot be amended unilaterally by any of the tiers of government. This prevents the usurpation of power by any of the existing tiers of government. As noted by the late Anstey Wynes,

The division of powers between the Federal and State Governments being of the essence of federalism, it follows that the Constitution of the Federal State must almost necessarily be of the written and rigid, or controlled type. For, in order that the terms of the union may be adequately and permanently defined, the manner of apportionment of powers must be reduced to some definite and tangible form, not alterable by the central authority at will. [4]

Federal systems also require an impartial and independent arbiter to decide over disputes between governments. As the power of the Federal State is constitutionally divided between the centre and the regions, disputes naturally arise as to the proper sphere of power to be exercised. So the protection of the federal compact is vested in the hands of an independent and impartial arbiter, namely a constitutional court that ought to act as the guardian of the federal compact manifested in the written constitution. Without this the constitutional distribution of powers between the tiers of government effectively becomes a dead letter.[5] As John Stuart Mill pointed out:

Under the more perfect mode of federation, where every citizen of each particular State owes obedience to two Governments, that of his own state and that of the federation, it is evidently necessary not only that the constitutional limits of the authority of each should be precisely and clearly defined, but that the power to decide between them in any case of dispute should not reside in either of the Governments, or in any functionary subject to it, but in an umpire independent of both. There must be a Supreme Court of Justice, and a system of subordinate Courts in every State of the Union, before whom such questions shall be carried, and whose judgment on them, in the last stage of appeal, shall be final. This involves the remarkable consequence… that a Court of Justice, the highest federal tribunal, is supreme over the various Governments, both State and Federal; having the right to declare that any law made, or act done by them, exceeds the powers assigned to them by the Federal Constitution, and, in consequence, has no legal validity.[6]

In addition, a federation necessarily involves linking institutions between each sphere, usually in the form of a bicameral legislature. In theory, the regions (or states) are represented in an upper house called the Senate, whereby the representatives of each State must defend the regional interests. However, the reality is that in places like Brazil (and Australia, and the United States) the Senate is divided along party lines in the same way as the lower house, thus not truly protecting the interests of the states.

Finally, the application of the principle subsidiarity can be seen as another central characteristic of an authentic federal system. Subsidiarity guards against excessive centralisation by holding that the central government should play only a supporting role, acting if and only if the constituent units of governance are incapable of acting on their own. In a political and governmental context, ‘subsidiarity requires that decisions, whether legislative or administrative acts, should be taken at the lowest practical political level, that is as close as possible to those who are to be affected by them’.[7] In other words, subsidiarity provides that government should be undertaken at a regional or local level, as opposed to a central level, whenever possible.

Dr Zimmermann’s first book on the Theory of Democratic Federalism

General Features of the Brazilian Federation

In 1984, Brazil elected by indirect means and through the National Congress its first civilian president since 1960, and a new constitution was drafted in 1988. Unfortunately, the Constitution of 1988 is a highly centralist document, which confers upon the federal government a vast array of powers. Three tiers of government are explicitly defined, empowered and regulated by the Constitution: the union, the states, and the municipalities (Braz. Const., Art.1). The Constitution is, however, highly centralist, providing the federal government with a wide array of general and specific powers, including exclusive, common and concurrent competences.[8]

In this sense, Articles 21 and 22 of the Constitution grant the central government a variety of exclusive and concurrent powers, some of which overlap. These include the power to legislate with respect to civil, commercial, criminal, procedural, electoral, agrarian, maritime, aeronautical, space and labour law; to regulate foreign and interstate commerce, ports, and navigation, the postal service, foreign exchange, expropriation, mining, informatics, national transportation policy, naturalization, social security, nuclear activities, and commercial advertising. In regard to concurrent powers, the states can adopt only supplementary legislation. In the absence of federal legislation, the states are in principle free to regulate a topic, although federal law prevails over the state law to the extent of any inconsistency.

The states are left with almost nothing in terms of their so called ‘reserved powers’. Indeed, virtually all important legislation in Brazil, such as the civil code, commercial code, criminal code, procedural codes, labor code, consumer protection code, the corporation law, financial markets law, and electoral law are all federal statutes that apply uniformly throughout Brazil. The supremacy of the federal government is so absolute and all-encompassing that the very idea of any remaining area of law being reserved to the states is effectively meaningless.

The Federal Senate (Senado Federal) represents Brazil’s states symmetrically, in the proportion of three senators per state who are chosen through direct election. According to 2013 census data, the state of Roraima has only 488,000 inhabitants, while São Paulo, Brazil’s most populous state, has 43.6 million inhabitants. Hence, São Paulo has 89 times as many inhabitants as Roraima, yet each state has three senators. Each senator from São Paulo represents approximately 14.5 million inhabitants; each Roraima senator represents only about 163 thousand inhabitants.

The result is undemocratic disproportionality. Representing only 13 percent of the total electorate, the small states have 51 percent of the votes in the Senate, giving them an effective veto over the majority. The House of Representatives (Câmara dos Deputados) apparently represents the people proportionally and by means of direct election. However, the Brazilian Constitution also requires that smaller states be represented by a minimum of eight deputies while no state can have more than 70 deputies. As a result, São Paulo, which on a truly proportional system would have 60 times as many representatives as small states like Roraima, Acre, and Amapá, has only 8.75 times as many.

In relation to constitutional matters, the Supreme Federal Court (Supremo Tribunal Federal) is in charge of resolving disputes between branches of the federal or a state government, disputes and conflicts between the federal government and states, disputes between the federal government and the federal district, and disputes between states themselves (Braz. Const., art.102, II).The court’s primary function is to be a guardian of the federal Constitution. To achieve this, it possesses exclusive jurisdiction over direct actions of unconstitutionality, declaratory actions on the constitutionality of federal and state laws or administrative acts, and actions of unconstitutionality by omission (Braz. Const., art.102, I, a).

The Supreme Federal Court frequently strikes down state and municipal provisions because of conflicts with the federal Constitution or federal law. [9] Curiously, one rarely finds any case law invalidating federal legislation for invading the powers reserved to the Brazilian states. This is because the Constitution has granted too much power to the federal government and almost nothing to the states. Besides, no judge of the nation’s Supreme Court has ever assumed the role of truly protecting state’s rights from infringement by the federal legislation.

In relation to fiscal federalism, the Constitution of 1988 increased the revenue capacity of states and municipalities by transferring fiscal resources from the federal government to these orders of government. Yet, such a significant transfer of resources to these governments was not followed by a re-definition of responsibilities between the different tiers of government. To the contrary, Brazil’s federal system remains extremely centralised because the Constitution did not expand the areas that fall under the responsibility of states and municipalities, in the same proportion that it increased their revenues.

Characteristics of Democratic Federalism

A basic question before considering the key issues and priorities for reforming the Brazilian federation is whether the country’s governmental structure should continue to be a Federal one.  Does federalism still have a place in 21st century’s Brazil?  Is there any value in recognising federalism as one of our guiding constitutional principles? 

In my view, the answer to these questions must be a resounding and unequivocal yes. Beyond the simple fact that there are enormous practical difficulties associated with attempting to govern a country the size of Brazil with a single, centralised government, there are also numerous other advantages apparent in an authentic federal system.  A direct comparison of federal and unitary governments suggests that effective federal arrangements produce more stable governments, more efficient governments, higher rates of economic growth, and greater integrity in government.

Democratic federalism is the right political structure for the nation’s political system.  A well-designed model of federalism would offer numerous advantages over the present federative model.  The broad sweep of advantages can be categorised into three key areas: the plurality to be achieved via increased participation and access to the political system; further regional autonomy and diversity; and more innovation and competitive efficiencies. Indeed, in a properly working federation, government is more adaptable to the preferences of the people, more open to experiment and its rational evaluation, more resistant to shock and misadventure, and more stable.

An authentic federal system is based on effective political decentralisation.  This provides the additional benefit of promoting innovation and responsiveness. Competition between State and Federal governments should encourage an overall improvement in government performance. For example, policy innovations could be tested on a smaller scale and, if these experiments fail, the decentralising nature of such federalism cushions the nation as a whole from the full impact of governmental blunders.

The enhancement of democratic participation arises from the ordinary citizen being given multiple points of access to the government and through greater choice and diversity being provided. A more decentralised federal system allows for greater flexibility in policy choices, with the specific needs of citizens in different parts of the being more perfectly attended through the customisation of policies at the sub-national level. 

For a country such as Brazil the benefits are patently obvious.  The needs and issues of someone living in Rio de Janeiro will not be the same as those of somebody living in Cuiaba. It is simply unrealistic to expect a bureaucrat in Brasilia to be responsive to these differing local concerns. A more decentralised federal system would strengthen participatory democracy by bringing the instances of governmental deliberation closer to the people, thereby allowing the people to have a greater say in the local decisions that directly affect them. This democratic advantage of a decentralised system was commented by the late Hans Kelsen as follows:

Democracy may be centralized as well as decentralized in a static sense; but decentralisation allows a closer approach to the idea of democracy than centralization.  This idea is the principle of self-determination… Conformity to the order with the will of the majority is the aim of democratic organization.  But the central norms of the order, valid of the whole territory, may easily come into contradiction with the majority will of a group living on a partial territory.  The fact that the majority of the total community belongs to a certain political party, nationality, race, language, or religion, does not exclude the possibility that within certain partial territories the majority of individuals belong to another party, nationality, race, language, or religion.  The majority of the entire nation may be socialistic or Catholic, the majority of one or more provinces may be liberal or Protestant.  In order to diminish the possible contradiction between the contents of the legal order and the will of the individuals subject to it, in order to approximate as far as possible the ideal of democracy, it may be necessary, under certain circumstances, that certain noms of the legal order be valid only for certain partial territories and be created only by majority of votes of the individuals living in these territories. Under the condition that the population of the State has no uniform social structure, territorial division of the State territory into more or less autonomous provinces … may be a democratic postulate. [10]

Freedom and Federalism

Since experience shows that “power corrupts and absolute power corrupts absolutely”, there is little doubt that the most effective way to curb potentially arbitrary power is to divide it.[11]  Relevant to this discussion is the understanding that democratic federalism protects prevents an excessive accumulation of power. A more decentralized, participatory structure would become a buttress of liberty and a counterweight to elitism. Indeed, in the division or demarcation of powers between a central government and the state government there resides one of the true protections of individual freedom.[12] The American Founder James Madison made precisely this point in Federalist No. 51:[13]

In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments.  In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments.  Hence a double security arises to the rights of the people.  The different governments will control each other, at the same time that each will be controlled by itself.

According to Felix Moley (1894-1982), who was a Pulitzer Prize-winning journalist and college administrator in the United States, ‘the great overriding advantage of the federal system is that it operates to avert the dangers inherent in government by remote control’.[14] Federalism was central to his political thought because he regarded it as being essential to the protection of individual freedom. The value of federalism, according to Moley, lies primarily in the preservation of freedom by offering the important advantage of preventing any concentration of power. The primary goal of a real federalism is to create a federal constitution that most delicately balances the exercise of governmental power, ‘which is lost when government becomes so omnipotent as to turn the citizen to a mere ward of a unitary state’.[15]   

No political theorist wrote more authoritatively and prolifically about federalism as Daniel Elazar (1934-1999). The Founder of Center for the Study of Federalism at Temple University in the United States, he argued that ‘the central interest of true federalism in all its aspects is liberty’. In this respect, Professor Elazar believed that ‘the task of constitution-makers is to develop a [federative] regime for each people which secures liberty even while recognizing and allowing for government in its coercive aspects’.[16] In the last analysis, true or democratic federalism, in the words expressed by Elazar, ‘is designed to secure good government based on liberty or, put it other terms, to maintain effective government under conditions whereby the liberties of the partners to the federal bargain are maintained.’[17]

The argument that federalism may indeed be a safeguard of liberty (but that it cannot be relied upon by itself unless properly institutionalised constitutionally), has been more clearly testified by ‘public choice’ theories and their notions of ‘voice’ and ‘exit’.[18]  A true federalism is one that effectively enhances individual freedom because, as noted by the late U.S. federal judge Robert Bork, ‘if another state allows the liberty you value, you can move there, and the choice of what freedom you value is yours alone, not dependent on those who made the Constitution.  In this sense, federalism is the constitutional guarantee most protective of the individual’s freedom to make his own choices’.[19] A similar point was made by another celebrated American judge, the great Antonin Scalia, who served as Associate Justice the Supreme Court of the United States from 1986 until his death in 2016. As noted Scalia on the basis of his own experience as an American citizen,

there are many reasons for having a federal system, but surely the most important is that it produces more citizens content with the laws under which they live.  If, for example, the question of permitting so-called ‘sexually oriented businesses’ – porn shops – were put to a nationwide referendum, the outcome might well be 51 per cent to 49 per cent, one way or the other.  If that result were imposed nationwide, nearly half of the population would be living under a regime it disapproved.  But such a huge proportion of the pro-sex-shop vote would be in states such as New York, California, and Nevada; and a huge proportion of the anti-sex-shop vote would be in the south, and in such western states as Utah and New Mexico.  If the question of permitting sexually oriented businesses were left to the states – which is surely where the First Amendment originally left it – perhaps as much as 80 per cent of the population would be living under a regime that it approved.[20] 

Final Considerations

Federalism remains the best political structure for Brazil. However, functions should, where practical, be vested in the lowest level of government, to ensure that their exercise is as close to the citizen as possible and reflects personal preferences and local conditions. The principle of subsidiarity should therefore be more effectively applied, so that priority is given to the instances of power with the greatest proximity of the citizen. Once applied to federative models, subsidiarity focuses on the subordinate performance of government action, placing on those who seek to confer power to a higher or more distant level of government the ultimate onus to properly make the case for it. 

The reforms hereby suggested are designed to bring about a federal system that controls power, safeguards democracy, and promotes liberty. Of course, that is not to deny an important role for the central government. When we speak of re-strengthening federalism this is not just a blanket call to strengthen States rights, but a call achieving the best possible outcome for Brazilians. It is therefore recognised that certain powers must be vested in the central government, such as where there are overriding national interest concerns (such as defence). This tier of government also plays a fundamental role where uniformity is required for reasons of equity, such as social security benefits. 

To conclude, the Brazilian federal system must be called “dysfunctional” and desperately need of democratic transformation. Federalism remains the right political structure for our country. But it is also clear that there is an urgent need for radical reform of a federal system that completely disregards subsidiarity and a proper understanding that the primary task of a true federal system is to make the constituents polities to conform to minimum standards of individual liberty and at the same time preserving the republican (or participatory) character of the federation as a whole.[21] Once the democratic deficiencies of the present model is more fully acknowledged, this should offer an opportunity to improve the day-to-day operation of the federative levels of government (i.e.; federal, state and local), thus ensuring that the federal dividend is finally realised for every Brazilian citizen.

Professor Augusto Zimmermann

Perth/WA, 23rd October 2020

*     Professor and Head of Law, Sheridan Institute of Higher Education. Editor-in-Chief, The Western Australian Jurist; President, The Western Australian Legal Theory Association (WALTA); Member of the Instituto Federalista do Brasil. Paper presented at the III Forum Federalista Nacional on 22 October 2020.

[1]     A Heywood, Politics (Palgrave Macmillan, 2nd ed, 2002) 161.

[2]     A V Dicey, Introduction to the Study of the Constitution (Macmillan, 1915) 83.

[3]     James C. MacPherson, ‘The Future of Federalism’, in Stephen J. Randall and Roger Gibbins, Federalism and the New World Order (University of Calgary Press, 1994) 10.  

[4]     W A Wynes, Legislative, Executive and Judicial Powers in Australia (Law Book Co, 1955) 3.

[5]     See A Tocqueville, Democracy in America (1835), Chapter VIII.

[6]     J S Mill, Considerations on Representative Government (1861), Chapter 17.

[7]    M Evans, ‘Subsidiarity and Federalism: A Case Study of the Australian Constitution’, in A Zimmermann & M Evans, Global Perspectives on Subsidiarity (Springer, 2014) 187.

[8]   Common competences are administrative functions that must be commonly exercised by all the tiers of government (Union, states, and municipalities). Such competences are defined in Article 23 and they include, for example, the common administrative power to provide for health and putlic assistance; to provide the means of access to culture, education and science; to protect the environment and to fight pollution, etc. By contrast, a competence is defined as concurrent when it creates general norms which allow either the Union or the states to legislate concurrently on the particular subject-matter. Hence, Article 24 grants the Union, the states and the Federal District the concurrent power to legislate on areas such as judicial procedure, education, sports, as well as taxation, financial and economic law, penal law, urbanistic law, etc.

[9] See. e.g. ADI 1472 (D.J. Oct. 25, 2002); ADI 1918 (D.J. Aug 1, 2003); ADI 2487 (D.J. Dec.1, 2004)

[10]    H Kelsen, General Theory of Law and State (Russell & Russell, 1945) 313.

[11]    H Gibbs, ‘Courage in Constitutional Interpretation and its Consequences: One Example’ (1991) 14 University of New South Wales Law Journal 325.

[12]    R Menzies, Central Power in the Australian Commonwealth (Cassell, 1967) 24.

[13]    J Madison, The Federalist No. 51 (6 February 1788).

[14]    F Moley, Freedom and Federalism (Liberty Fund, 1981), 5

[15]    Ibid, 307.

[16]    D J Elazar, Exploring Federalism (The University of Alabama Press, 1987),

[17]    Ibid., 91.

[18]    T Blackshield and G Williams, Australian Constitutional Law and Theory: Commentary and Materials (Federation Press, 4th ed, 2006) 243.

[19]    R Bork, The Tempting of America (Simon & Schuster, 1991) 53.

[20]    A Scalia, ‘Romancing the Constitution: Interpretation as Invention’. in G Huscroft and I Brodie (eds), Constitutionalism in the Charter Era (LexisNexis, 2004) 342.

[21] As Professor Elazar put it: ‘It is the task of the constituent polities to protect individual liberty, more or less as each defines it, although the constituent polities … must conform to at least minimum standards of individual liberty to preserve the republican character of the whole’. – Elazar, above n 16, 93.