"Há em todas as constituições o estado de exceção": o debate sobre o sistema constitucional das crises na Assembleia Nacional Constituinte (1987-1988)

Abstract

In the Rule of Law, the Constitution is the one that decides on the state of exception. This dissertation examines the incorporation of exception techniques during the National Constituent Assembly (1987–1988), with an emphasis on the state of siege, the state of defense, and federal intervention – institutes that compose the constitutional system of crises. The research is based on the difficulty, sometimes recognized as a paradox, faced by democratic constitutionalism in reconciling individual rights and guarantees with the regulation of the state of exception. Under the pretext of safeguarding the legal order and the State, juridifying it may lead to the instrumentalization and trivialization of measures aimed at addressing crises to the detriment of normality, as well as the weakening of democratic quality. In this context, under thematic, spatial, and temporal scopes, the research problem is: how was the debate on the constitutional system of crises conducted in the National Constituent Assembly (1987–1988)? The objective is to identify the rejected and accepted ideas, the convergences and divergences, and the challenges and facilitations in shaping the mentioned institutes. To this end, through a descriptive effort characteristic of Constitutional History, this bibliographic and documentary research prioritizes primary sources from the constituent process, available on the official websites of the Chamber of Deputies and the Federal Senate. Besides the introduction and final considerations, the results are presented in three additional chapters. The second chapter examines the constitutionalization of the state of exception from three perspectives: terminological, conceptual, and normative, highlighting the Brazilian constitutional trajectory. The third and fourth chapters, following the chronological sequence of events, contain the proper investigation of the constituent debate. This process includes discussions that took place in subcommittees and thematic committees, the systematization committee, the plenary stage, and the drafting committee, by consulting minutes, stenographic notes, relevant speeches, drafts, amendments, and proposed bills. The results indicate the predominance of two main lines of argument regarding the inclusion of the states of siege and defense in the constitutional text. The first, linked to a conservative tradition, supports their inclusion, often invoking the defense of democracy and foreign constitutional experiences as validation. The second, associated with a progressive tradition, advocates for the protection of individual guarantees, expressing concerns about the trivialization of these mechanisms and linking them to past authoritarian experiences. While federal intervention was regulated without significant controversy, the provision of the state of defense was intensely questioned by a segment of the constituents. The research highlights that, interestingly, both proponents and opponents of the constitutionalization of extraordinary mechanisms invoked the term “democracy” to strengthen their arguments. It also infers that the regulation of the state of exception remains a permanent dilemma in constitutionalism.