Constitutional Amendments As A Means to Entrench Public Policies: The Brazil Experience

The Brazilian experience in constitutional amendments illustrates several difficulties posed in conciliating analytical constitutionalism with democracy. The Brazilian constitution in its 30th anniversary, may reach 100 amendments, suggesting even a case of abusive constitutionalism. Most amendments bring to the constitutional text, components of public policies put in place by the incumbent president and parties, sometimes creating an interpretation paradox, because they aim different. Powerful illustrations of this are Amendments 20, 29 and 86, instituting a minimum public expenditure in the public health system; and Amendment 95, establishing a general limit in public expenditure for the next 20 years. Entrenching public policies through constitutional amendments can be consider antidemocratic, as they intend to constrain future governments. Other undesirable outcomes are breaches in the internal congruency of the Text, and a predatory competition among those public policies.