In my darker moments, I sometimes think that between them, the First and Second Amendments are going to devour the whole rest of the United States Constitution. We’re fortunate that the First Amendment fundamentalists and the Second Amendment fundamentalists can hardly tolerate each other; if they ever come together in an alliance the American Experiment probably will be doomed. This thought came to me very strongly in reading Professor Mchangama’s piece. The First Amendment fundamentalism of the piece was worthy of the least temperate advocate of the ACLU, especially surprising since Professor Mchangama is Danish; many Europeans, like many Brazilians, have a more nuanced view of the subject. But what the Professor wrote is so wrong on so many levels with particular respect to Brazil that I’ll limit my response to those points, and leave the larger philosophical issues to the side, at least for the most part.
I have studied Brazil, its people, history, culture, and legal and constitutional development, formally and informally, for my entire adult life, so in other words, for a little over fifty years and counting. I lived in Brazil under the military dictatorship of 1964-1985, and I live in Brazil now under the democratic regime, the “Estado de Direito”, the “State of Law”. Like the United States and all very large countries, Brazil is a complex world unto itself, and as well as I know it, it still surprises me every day. Also like all very large countries, Brazil focuses on its own concerns most of the time, not on the opinions and actions of the outside world unless they impinge upon or threaten it. I’m a dual citizen, native-born American and naturalized Brazilian.
Some initial points should go without saying, but clearly from the article do not, so I’ll state them. First, Brazil isn’t the United States, and Brazilians aren’t Americans who happen to speak a different language. Brazil has its own history, which started over a hundred years before that of the United States, it has its own language, Portuguese, and it has its own culture, characterized by a strong Portuguese base – quite distinct from the cultural heritages of England, France, or Spain -- that integrated Indigenous and African aspects in ways and from ethnic groups totally unfamiliar to North America, and immigrant populations that were also distinctly different and never included many English speakers.
Second, US and Brazilian history are totally different. Brazil experienced a practically bloodless and amicable separation from its colonial power with no drawn-out independence war. This was followed by a long period of successful constitutional monarchy that respected citizens’ liberties, preserved national unity, peacefully abolished slavery, was moving in the direction of implementing a full-fledged Westminster-style system, and was broadly supported, as nearly as we can tell at this distance in time, by public opinion when it was unexpectedly overthrown by the country’s first military coup in 1889. The coup was about civilian control of the military: the Imperial Government insisted on it, the generals were willing to destroy the world’s second oldest written national constitution to prevent it . The result was ninety-nine years of institutional stasis, as weak civilian governments under more or less overt military tutelage alternated with civil/military or outright military dictatorships. The military was imbued with an authoritarian strain of the Positivist philosophy of 19th Century French thinker Auguste Comte, which has become a recurrent theme in Brazilian political thought and against which democrats continue to battle.
The United States Constitution is a product of late 18th Century Enlightenment philosophy, informed by the writings of earlier English writers and an ideological commitment to a certain understanding of Liberty, especially as expressed in the Declaration of Independence and Washington’s Farewell Address. It is undoubtedly brilliant and durable, but as Samuel Huntington wrote in his monumental Political Order in Changing Societies (1968) “The United States thus combines the world’s most modern society with one of the world’s more antique polities.” The Common Law tradition of the English-speaking nations has tended to “fill in the blanks” as they developed over time and largely been faithful to the intent of the Founders, but it would be wrong, as I think Professor Mchangama does, to assume that the Constitution’s statements and particularly the judicial decisions that have expanded them are either necessarily the best statements of the underlying principles, or automatically applicable to all people at all times.
The Brazilian Constitution of 1988, on the other hand, is a late 20th Century document informed by the vivid direct experience of over twenty years of dictatorship, that followed almost eighty years during which the country’s previous constitutional development had been ripped out by the roots. In this, Brazil was rather like the European countries that became free after the collapse of the Soviet Union: some of them also had democratic histories, but decades of Communism had cut them off from their institutional past and they had to start from scratch. Unlike the Philadelphia Convention, the Brazilian Constituinte had direct knowledge of modern communications, modern propaganda, and how effectively both had been combined with force to suppress liberty. If Brazil takes constitutional precautions to protect itself from forces that it knows threatens its liberties because those forces have extinguished those liberties in the past, that is not, as Professor Mchangama implies, a democratic departure; like Germany’s prohibition of neo-Nazi agitation, it’s a democratic necessity.
Nowhere does Professor Mchangama show his basic misunderstanding of the Brazilian reality more clearly than in his initial hypothetical about US Chief Justice Roberts starting an investigation, from which a Parade of Horribles inevitably ensues. “Such a scenario” he intones, “… would be unthinkable in the United States, or in any democracy that respects the separation of powers and the rule of law. However, in Brazil this scenario is not a hypothetical dystopia but a reality.” Yes, in Brazil it IS a reality, but no, while it would be “unthinkable” in the United States it would not be unthinkable “in any democracy that respects … the rule of law”. Brazil is a democracy that through bitter experience not only respects but treasures the rule of law. And it is NOT a dystopia.
Brazil is not a Common Law country like the United States. It’s a Civil Law country like France, Italy, and of course, Portugal, and the role of a judge in a Civil Law country is quite different. Judges in Brazil are not referees in an adversarial system, they’re the presiding officers in an inquisitorial system. For judges in Brazil to manage investigations is not “unilaterally combin[ing] the powers of all three branches, acting as legislator, prosecutor, and judge”, it’s doing what they’re SUPPOSED to do. The role of Minister Moraes in the cases that the Professor is writing about is not the role of Prosecutor – that’s the role of the Procurator General of the Republic, who is doing it, and doing it very ably in my view. Minister Moraes’s role is that of “Relator”, a position unknown in Common Law countries. It’s to organize and to manage the case – in this situation the cases – to ensure that both the Prosecution and the Defense do their jobs and have their say, and ultimately to present it to his colleagues on the court so that they have everything they need to make informed decisions. This is standard procedure in all superior Brazilian courts. These cases fall within the original jurisdiction of Brazil’s highest court not because of any action on Minister Moraes’s part, but because of the requirements of Brazilian law.
As for the related cases involving social media companies, in the United States (so far!) the decision seems to have been made not to regulate them – except for TikTok, for which the current Administration is violating the law with no apparent consequences anyway. To the extent that they are mostly American companies, that’s a domestic concern. When they transmit into another country, though, they come under that country’s laws, or should. That’s what Brazil insists on, and Brazil is within its sovereign rights to do so. Professor Mchangama may not like Brazil’s decision, but his dislike doesn’t equate to a failure of democracy in Brazil. In the face of the firehose of lies that we are all subjected to via the internet every day, the Professor’s contention “When applied consistently and without partisanship, free expression strengthens democracy and ensures the judiciary remains a check on, rather than a usurper of, political power.” seems to me one that remains to be proven in the United States, while he condemns Brazil for trying – and so far succeeding – to make it a reality.
Is DeMoraes in fact "well-intentioned"? Or just self-rationalizing with an awareness that he covets power? Does it matter? The Lula administration is guilty of far more authoritarian actions than Bolsonaro.
I lived in Brazil during the military dictatorship. I lived in Brazil during Bolsonaro's Administration. I was here to hear all of his nostalgia for the dictatorship, and to witness his attempted coup of January 8, 2023. I live in Brazil now. I don't know where you get your information, but if you really think that Lula is the authoritarian, you need better sources.
Brazil's official response to the Trump tariffs and related pressure. My AI-assisted translation:
Brazil is a sovereign and democratic country.
Brazil is a sovereign and democratic country that respects human rights and the independence of the branches of government. It is a country that defends multilateralism and harmonious coexistence among nations, which has guaranteed the strength of our economy and the autonomy of our foreign policy.
The US government's interference in the Brazilian justice system is unacceptable.
The Brazilian government stands in solidarity with Minister Alexandre de Moraes of the Supreme Federal Tribunal, who is the target of sanctions motivated by the actions of Brazilian politicians who betray our country and our people in defense of their own interests.
One of the foundations of democracy and respect for human rights in Brazil is the independence of the Judiciary, and any attempt to weaken it constitutes a threat to the democratic regime itself. Justice is not negotiable.
In Brazil, the law applies to all citizens and all businesses. Any activity that affects the lives of the population and Brazilian democracy is subject to regulations. This is no different for digital platforms. Brazilian society rejects hateful content, racism, child pornography, scams, fraud, and rhetoric against human rights and democracy.
The Brazilian government considers the use of political arguments to validate the trade measures announced by the US government against Brazilian exports unjustifiable. Brazil has accumulated a significant trade deficit in goods and services with the United States in recent decades. The political motivation behind the measures against Brazil undermines national sovereignty and the historical relationship between the two countries.
Brazil remains willing to negotiate trade aspects of its relationship with the United States, but will not relinquish the country's instruments of defense provided for in its legislation. Our economy is increasingly integrated with key international markets and partners.
We have already begun assessing the impacts of these measures and developing actions to support and protect Brazilian workers, businesses, and families.
I agree heartily with the conclusion: "If Brazil wants to save its democracy, it must trust its citizens more than its well-intentioned inquisitors." Citizens are not stupid children to be shielded from dangerous ideas. We are meant to be the bosses in a democracy.
I would also point out that censorship is inevitably POLITICAL . The ruling government will always censor points of view which disadvantage it politically. So Trump censors anti-Israel protests- to please his Zionist donors. In Europe the left and center left ruling parties censor criticisms of immigration and of transgender ideology. In effect they are censoring people who criticize pro-immigration policies and pro-transgender policies they have embraced. Same thing for the covid and vaccine censorship.
In my darker moments, I sometimes think that between them, the First and Second Amendments are going to devour the whole rest of the United States Constitution. We’re fortunate that the First Amendment fundamentalists and the Second Amendment fundamentalists can hardly tolerate each other; if they ever come together in an alliance the American Experiment probably will be doomed. This thought came to me very strongly in reading Professor Mchangama’s piece. The First Amendment fundamentalism of the piece was worthy of the least temperate advocate of the ACLU, especially surprising since Professor Mchangama is Danish; many Europeans, like many Brazilians, have a more nuanced view of the subject. But what the Professor wrote is so wrong on so many levels with particular respect to Brazil that I’ll limit my response to those points, and leave the larger philosophical issues to the side, at least for the most part.
I have studied Brazil, its people, history, culture, and legal and constitutional development, formally and informally, for my entire adult life, so in other words, for a little over fifty years and counting. I lived in Brazil under the military dictatorship of 1964-1985, and I live in Brazil now under the democratic regime, the “Estado de Direito”, the “State of Law”. Like the United States and all very large countries, Brazil is a complex world unto itself, and as well as I know it, it still surprises me every day. Also like all very large countries, Brazil focuses on its own concerns most of the time, not on the opinions and actions of the outside world unless they impinge upon or threaten it. I’m a dual citizen, native-born American and naturalized Brazilian.
Some initial points should go without saying, but clearly from the article do not, so I’ll state them. First, Brazil isn’t the United States, and Brazilians aren’t Americans who happen to speak a different language. Brazil has its own history, which started over a hundred years before that of the United States, it has its own language, Portuguese, and it has its own culture, characterized by a strong Portuguese base – quite distinct from the cultural heritages of England, France, or Spain -- that integrated Indigenous and African aspects in ways and from ethnic groups totally unfamiliar to North America, and immigrant populations that were also distinctly different and never included many English speakers.
Second, US and Brazilian history are totally different. Brazil experienced a practically bloodless and amicable separation from its colonial power with no drawn-out independence war. This was followed by a long period of successful constitutional monarchy that respected citizens’ liberties, preserved national unity, peacefully abolished slavery, was moving in the direction of implementing a full-fledged Westminster-style system, and was broadly supported, as nearly as we can tell at this distance in time, by public opinion when it was unexpectedly overthrown by the country’s first military coup in 1889. The coup was about civilian control of the military: the Imperial Government insisted on it, the generals were willing to destroy the world’s second oldest written national constitution to prevent it . The result was ninety-nine years of institutional stasis, as weak civilian governments under more or less overt military tutelage alternated with civil/military or outright military dictatorships. The military was imbued with an authoritarian strain of the Positivist philosophy of 19th Century French thinker Auguste Comte, which has become a recurrent theme in Brazilian political thought and against which democrats continue to battle.
The United States Constitution is a product of late 18th Century Enlightenment philosophy, informed by the writings of earlier English writers and an ideological commitment to a certain understanding of Liberty, especially as expressed in the Declaration of Independence and Washington’s Farewell Address. It is undoubtedly brilliant and durable, but as Samuel Huntington wrote in his monumental Political Order in Changing Societies (1968) “The United States thus combines the world’s most modern society with one of the world’s more antique polities.” The Common Law tradition of the English-speaking nations has tended to “fill in the blanks” as they developed over time and largely been faithful to the intent of the Founders, but it would be wrong, as I think Professor Mchangama does, to assume that the Constitution’s statements and particularly the judicial decisions that have expanded them are either necessarily the best statements of the underlying principles, or automatically applicable to all people at all times.
The Brazilian Constitution of 1988, on the other hand, is a late 20th Century document informed by the vivid direct experience of over twenty years of dictatorship, that followed almost eighty years during which the country’s previous constitutional development had been ripped out by the roots. In this, Brazil was rather like the European countries that became free after the collapse of the Soviet Union: some of them also had democratic histories, but decades of Communism had cut them off from their institutional past and they had to start from scratch. Unlike the Philadelphia Convention, the Brazilian Constituinte had direct knowledge of modern communications, modern propaganda, and how effectively both had been combined with force to suppress liberty. If Brazil takes constitutional precautions to protect itself from forces that it knows threatens its liberties because those forces have extinguished those liberties in the past, that is not, as Professor Mchangama implies, a democratic departure; like Germany’s prohibition of neo-Nazi agitation, it’s a democratic necessity.
Nowhere does Professor Mchangama show his basic misunderstanding of the Brazilian reality more clearly than in his initial hypothetical about US Chief Justice Roberts starting an investigation, from which a Parade of Horribles inevitably ensues. “Such a scenario” he intones, “… would be unthinkable in the United States, or in any democracy that respects the separation of powers and the rule of law. However, in Brazil this scenario is not a hypothetical dystopia but a reality.” Yes, in Brazil it IS a reality, but no, while it would be “unthinkable” in the United States it would not be unthinkable “in any democracy that respects … the rule of law”. Brazil is a democracy that through bitter experience not only respects but treasures the rule of law. And it is NOT a dystopia.
Brazil is not a Common Law country like the United States. It’s a Civil Law country like France, Italy, and of course, Portugal, and the role of a judge in a Civil Law country is quite different. Judges in Brazil are not referees in an adversarial system, they’re the presiding officers in an inquisitorial system. For judges in Brazil to manage investigations is not “unilaterally combin[ing] the powers of all three branches, acting as legislator, prosecutor, and judge”, it’s doing what they’re SUPPOSED to do. The role of Minister Moraes in the cases that the Professor is writing about is not the role of Prosecutor – that’s the role of the Procurator General of the Republic, who is doing it, and doing it very ably in my view. Minister Moraes’s role is that of “Relator”, a position unknown in Common Law countries. It’s to organize and to manage the case – in this situation the cases – to ensure that both the Prosecution and the Defense do their jobs and have their say, and ultimately to present it to his colleagues on the court so that they have everything they need to make informed decisions. This is standard procedure in all superior Brazilian courts. These cases fall within the original jurisdiction of Brazil’s highest court not because of any action on Minister Moraes’s part, but because of the requirements of Brazilian law.
As for the related cases involving social media companies, in the United States (so far!) the decision seems to have been made not to regulate them – except for TikTok, for which the current Administration is violating the law with no apparent consequences anyway. To the extent that they are mostly American companies, that’s a domestic concern. When they transmit into another country, though, they come under that country’s laws, or should. That’s what Brazil insists on, and Brazil is within its sovereign rights to do so. Professor Mchangama may not like Brazil’s decision, but his dislike doesn’t equate to a failure of democracy in Brazil. In the face of the firehose of lies that we are all subjected to via the internet every day, the Professor’s contention “When applied consistently and without partisanship, free expression strengthens democracy and ensures the judiciary remains a check on, rather than a usurper of, political power.” seems to me one that remains to be proven in the United States, while he condemns Brazil for trying – and so far succeeding – to make it a reality.
Is DeMoraes in fact "well-intentioned"? Or just self-rationalizing with an awareness that he covets power? Does it matter? The Lula administration is guilty of far more authoritarian actions than Bolsonaro.
I lived in Brazil during the military dictatorship. I lived in Brazil during Bolsonaro's Administration. I was here to hear all of his nostalgia for the dictatorship, and to witness his attempted coup of January 8, 2023. I live in Brazil now. I don't know where you get your information, but if you really think that Lula is the authoritarian, you need better sources.
Brazil's official response to the Trump tariffs and related pressure. My AI-assisted translation:
Brazil is a sovereign and democratic country.
Brazil is a sovereign and democratic country that respects human rights and the independence of the branches of government. It is a country that defends multilateralism and harmonious coexistence among nations, which has guaranteed the strength of our economy and the autonomy of our foreign policy.
The US government's interference in the Brazilian justice system is unacceptable.
The Brazilian government stands in solidarity with Minister Alexandre de Moraes of the Supreme Federal Tribunal, who is the target of sanctions motivated by the actions of Brazilian politicians who betray our country and our people in defense of their own interests.
One of the foundations of democracy and respect for human rights in Brazil is the independence of the Judiciary, and any attempt to weaken it constitutes a threat to the democratic regime itself. Justice is not negotiable.
In Brazil, the law applies to all citizens and all businesses. Any activity that affects the lives of the population and Brazilian democracy is subject to regulations. This is no different for digital platforms. Brazilian society rejects hateful content, racism, child pornography, scams, fraud, and rhetoric against human rights and democracy.
The Brazilian government considers the use of political arguments to validate the trade measures announced by the US government against Brazilian exports unjustifiable. Brazil has accumulated a significant trade deficit in goods and services with the United States in recent decades. The political motivation behind the measures against Brazil undermines national sovereignty and the historical relationship between the two countries.
Brazil remains willing to negotiate trade aspects of its relationship with the United States, but will not relinquish the country's instruments of defense provided for in its legislation. Our economy is increasingly integrated with key international markets and partners.
We have already begun assessing the impacts of these measures and developing actions to support and protect Brazilian workers, businesses, and families.
LUIZ INÁCIO LULA DA SILVA
President of the Republic
I agree heartily with the conclusion: "If Brazil wants to save its democracy, it must trust its citizens more than its well-intentioned inquisitors." Citizens are not stupid children to be shielded from dangerous ideas. We are meant to be the bosses in a democracy.
I would also point out that censorship is inevitably POLITICAL . The ruling government will always censor points of view which disadvantage it politically. So Trump censors anti-Israel protests- to please his Zionist donors. In Europe the left and center left ruling parties censor criticisms of immigration and of transgender ideology. In effect they are censoring people who criticize pro-immigration policies and pro-transgender policies they have embraced. Same thing for the covid and vaccine censorship.