Once, Augustine of Hippo (354–430 AD) wrote: “Remove justice, and what are kingdoms but great bands of robbers?” I ask: what is the Brazilian government if not a gang of thieves?
Look at yesterday’s Dantesque spectacle with Gilmar Mendes outraged because a Justice of the STF dared not follow the mafia’s ethics: “You cannot expose a colleague, even if he is involved. Even the mafia has more ethics.”
My intention, however, is not to repeat here the horrors of yesterday. The press and social media have already done their work. Rather, I aim to show, among the various causes that led us to this state of affairs, one of the most relevant: the 1988 Constitution itself.
I begin by stating that it is a mistake to imagine this is a circumstantial situation and that replacing the ministers with “good men” will solve it. There is not the slightest chance of that happening. The current situation is the predictable fruit of our social-democratic Constitution.
Our Federal Constitution, from its origin, incorporated what is called social justice as a central element. Social justice (or distributive justice) is a fancy name (the left is specialized in giving fancy names to barbarities) for legalized plunder—that is, the use of the State’s coercive power to take goods or property from some people without their consent and hand them over to others who did not produce them, making legal an act that, if committed by an ordinary citizen, would be considered robbery or crime (Frédéric Bastiat, 1801–1850).
The left sells this idea as the State being a kind of modern Robin Hood. After all, in Marxist belief, profit is theft.
By doing so over the years, it formed a generation of jurists, managers, politicians, and also citizens who came to see the theft practiced by the State as legitimate. With that, a myth was built, and society began to treat as natural that the State can freely take resources from companies to transfer them to the “poor” and achieve so-called “social justice.” After all, companies must fulfill their social role… of being robbed by the State.
As a counterpart, generations of citizens dependent on the State were formed, who consider themselves fully entitled to live at the expense of those who worked and generated wealth—after all, society is unfair! And these are our current voters…
As if the Constitution were not enough, to save the country from its social injustices (this “unconstitutional state of affairs,” yet another barbarity already decided by our STF), nothing like building doctrine and case law that allow a growing role for the Judiciary.
The chief architect of this construction was our Justice Gilmar Mendes, as could not fail to be the case. Quoting in German (it is easier to confuse people when they cannot read the language of the cited authors and, thereby, one also gains the right to use the original authors as one wishes), he introduced concepts such as the objectification of diffuse constitutional review. According to this view, when the brazilian Supreme Court (STF) declares a law unconstitutional in a concrete case, that decision already has general efficacy (erga omnes) and binding effect. Thus, the Senate’s role of “suspending the execution” of the law, expressly provided in Article 52, item X, of the Federal Constitution, became a merely administrative act of giving publicity to the STF’s decision. This was, if not the first, one of the most gross creations of the STF that violate the very text of the Constitution. From then on, the STF came to understand that not even the constitutional text needed to be respected any longer.
But he was not alone on this path.
There is, of course, former Justice Teori Zavascki contributed to the growing scope of class actions, granting the Public Prosecutor’s Office — a major partner of the Judiciary in safeguarding privileges for both parties — the power to protect collective rights in substitution of the Legislative and Executive branches (often even violating the budget!).
One cannot forget the gigantic contribution of Justice Marco Aurélio de Mello in incorporating into STF case law the concept of an unconstitutional state of affairs, imported from Colombia! From Colombia! A masterful reference! According to this curious concept, the Judiciary, recognizing a situation of massive, widespread, and systemic violation of fundamental rights, granted itself the power to establish guidelines and compel the Executive and Legislative branches to present joint action plans to correct the problem. And the STF (Supreme Federal Court) became a superpower!
I also highlight the contribution of Justice Luiz Roberto Barroso and his Enlightenment vision of the Judiciary. According to him, it is no longer up to society to autonomously decide its own direction, make its own laws, or allocate its own resources. We are under the guardianship of the STF justices, lighthouses destined to illuminate the darkness in which we, poor ignorant and mortal beings, live.
Indeed, yesterday we had the opportunity to see where the STF’s beacon points.
And now, the members of the Judiciary, especially those of the STF (but the plague is widespread), styling themselves as the Enlightenment heroes of the nation, began their process of beatification. And vile men, as we had the opportunity to see yesterday, sanctified themselves by occupying those positions. And here we are, with Justice Gilmar Mendes and the omertà – code of honor and silence of the mafias of southern Italy-, to protect the sanctified.
Incidentally, it is worth remembering that Lord Acton (1834–1902) once wrote: “There is no worse heresy than that the office sanctifies the one who holds it.“
We can also cite Justice Carmen Lúcia and her “highly exceptional” violation of the Constitution to permit censorship whenever she deemed it appropriate. Or, to put it another way, it is the Supreme Court that decides when to apply the Constitution and when not to.
And I couldn’t fail to mention that in all of this, there is the special role of Minister Alexandre de Moraes and his ‘defense of democracy’—an incompetent court, convicting people without evidence, in summary proceedings, for impossible crimes, with absurd sentences.
None of this is new, and nothing that is happening today was unforeseeable. I cited historical authors not to display erudition, but to show that these problems are neither new nor were they unforeseeable. Human nature is still the same, and the problems of politics are too. Our Constitution, drafted by legislators who were mostly functional illiterates, completely disregarded all the lessons of history to bequeath us this social-democratic garbage that could only have produced the spectacle it produced. It is time—it is past time—to throw it away and refound Brazil.
I hope that our next president (or Flávio Bolsonaro ou Zema) understands and manages to make the necessary changes, not only by replacing the men, but also by completely reforming or even replacing our Constitution.
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