Make Brazil’s 1988 Constitution Great Again

—Gabriel de Moraes, PhD Candidate in Law at the Federal University of Pará (UFPA)

The false comfort of constitutional importation

Brazilian constitutionalism has always learned from abroad. Now, to be fair, comparative borrowing is not, in itself, a problem. The danger begins when foreign constitutional symbols are detached from their institutional history and reattached to a different constitutional body as political prostheses. This is what is happening today with the selective appropriation of the First and Second Amendments of the United States Constitution in Brazilian debates over free speech, digital platforms, and gun rights.

The issue is not that Brazilian conservatives, liberals, or traditionalists cite the United States. The issue is that the First and Second Amendments have increasingly become symbolic devices through which actors try to rewrite the grammar of the 1988 Brazilian Constitution without formally amending it. They operate less as legal transplants and more as rhetorical weapons: the U.S. First Amendment is invoked to defend a maximalist conception of expression, even when speech produces organized disinformation, harassment, or anti-democratic mobilization; the U.S. Second Amendment is invoked to normalize civilian armament, even though Brazil has no constitutional right to bear arms and has built its post-authoritarian public security framework around statutory regulation.

The First Amendment as a shield against democratic accountability

The U.S. First Amendment has a specific doctrinal and political history. In the United States, modern free speech doctrine strongly protects even offensive and extremist speech, with the classic limit drawn in Brandenburg v. Ohio: advocacy of unlawful conduct may not be prohibited unless it is directed to producing imminent lawless action and is likely to produce it.

That framework has become attractive to actors who want to treat almost any public intervention against hate speech, coordinated disinformation, platform manipulation, or attacks on electoral institutions as “censorship.” In Brazil, this vocabulary became especially visible during conflicts involving the Supreme Federal Court, digital platforms, and far-right networks. The dispute with X, for instance, was framed by Elon Musk and Brazilian right-wing actors as a matter of free speech, while Brazilian authorities described it as non-compliance with court orders and domestic law.

The Brazilian constitutional model is different, however. The 1988 Constitution in its Article 5 protects freedom of thought and expression, prohibits prior censorship, and guarantees freedom of artistic, scientific, intellectual, and communication activity. But it also prohibits anonymity, protects honor and image, guarantees a right of reply, and embeds speech rights in a broader constitutional order committed to democracy, equality, dignity, and social solidarity.

This matters because Brazilian constitutionalism after 1988 was not designed as a libertarian constitution of isolated individuals. It was a reconstruction pact after dictatorship. Its theory of freedom is inseparable from a theory of democratic responsibility. To read Article 5 through a decontextualized U.S. First Amendment lens is to amputate the social, anti-authoritarian, and egalitarian dimensions of the Brazilian constitutional project.

The Second Amendment as a fantasy of armed citizenship

The same operation appears in the debate on firearms. In the United States, District of Columbia v. Heller constitutionalized an individual right to possess firearms for lawful purposes such as self-defense in the home, detached from service in a militia. Later, Bruen deepened the historical-tradition test for evaluating firearm regulations.

Brazil has no equivalent. Firearms are not a constitutional liberty in Brazil. They are regulated by statute, especially the Disarmament Statute, which governs registration, possession, commercialization, the National Weapons System, and related crimes. The STF upheld the constitutionality of the Disarmament Statute in 2007, recognizing public security not merely as an individual preference but as a constitutional duty of the state. More recently, the Court invalidated decrees that had loosened firearm access under Bolsonaro and, in 2025, validated presidential decrees restricting access to firearms and ammunition.

The attempt to import U.S. Second Amendment common sense into Brazil therefore has a peculiar function. It does not clarify Brazilian constitutional law; it seeks to displace it. It creates the image of a citizen whose freedom is measured by the capacity to arm himself against society, institutions, and sometimes the democratic state itself. That image collides directly with the 1988 Constitution, which treats armed civilian or military groups acting against the constitutional order and the democratic state as an especially grave offense.

Symbolic prostheses and constitutional ventriloquism

The point becomes clearer if we look less at doctrine and more at performance. These invocations of the U.S. First and Second Amendments are not merely bad comparative law; they are political acts staged in constitutional language. Tilly once described repertoires as learned ways of making claims. That is precisely what is at stake here: Brazilian traditionalist actors have learned to say “free speech” when they mean immunity from institutional accountability, and to say “self-defense” when they mean the moral rehabilitation of armed politics. The anecdote is almost banal by now: whenever courts, electoral authorities, or public prosecutors react to coordinated disinformation or anti-democratic agitation, the response is immediate — “censorship.” Whenever the state restricts access to firearms, the response is equally predictable — “tyranny.” The vocabulary changes, but the performance is stable.

Bourdieu helps us see why this is not a secondary dispute over words. Constitutional language is a form of symbolic power: it has the capacity, as he put it, to “make people see and believe.” To call a militant network a community of “free speakers,” or to describe civilian armament as “liberty,” is not simply to describe reality; it is to reorganize perception. The juridical field is then pressured from outside by actors who do not necessarily want to abandon constitutionalism, but to occupy its signs, its prestige, and its grammar. They do not burn the Constitution; they ventriloquize it.

Hirschman’s classic typology of reactionary rhetoric also clarifies the maneuver. Brazil’s 1988 Constitution’s egalitarian promises are redescribed as producing the opposite of what they intend: rights become disorder, pluralism becomes moral decay, judicial protection becomes tyranny, and democratic self-defense becomes censorship. This is the rhetoric of perversity and jeopardy at work. The danger, then, is not only that American constitutional symbols are being imported into Brazil. It is that they are being used to make the Brazilian Constitution appear excessive, immature, or even dangerous precisely where it is most faithful to its post-authoritarian vocation.

Comparative constitutionalism against constitutional ventriloquism

None of this means that Brazilian constitutionalism should ignore the United States. The U.S. First Amendment can still offer important lessons about distrust of state orthodoxy, protection of dissent, and the dangers of vague censorship. The U.S. Second Amendment can help comparative scholars understand how constitutional culture, judicial interpretation, and political identity can transform a brief textual provision into a powerful institutional mythology.

But comparison must not become ventriloquism. A Brazilian actor cannot simply speak through Madison, Scalia, or the National Rifle Association and pretend that the result is Brazilian constitutional law. The 1988 Constitution emerged from a different history: dictatorship, censorship, social exclusion, political violence, and the need to reconstruct democracy through rights. Its central promise is not merely negative liberty against the state. It is democratic life under conditions of dignity, pluralism, equality, and institutional accountability.

The task today is therefore not to isolate Brazil from foreign constitutional ideas. It is to ask what those ideas do when they travel. Do they expand democratic imagination, or do they authorize authoritarian mimicry? Do they help protect dissent, or do they immunize organized campaigns against democracy? Do they enrich constitutional interpretation, or do they function as prostheses for projects that cannot win openly under the 1988 Constitution?

The danger of U.S. constitutionalism for Brazil today lies precisely in this selective appropriation. When the U.S. First Amendment is reduced to a license for disinformation and the U.S. Second Amendment to a fantasy of armed virtue, they stop being comparative references and become instruments of constitutional evasion. The problem is not American constitutional law as such. The problem is the Brazilian political use of American constitutional symbols to make 1988 say what it was created to resist.

Suggested citation: Gabriel de Moraes, Make Brazil’s 1988 Constitution Great Again, Int’l J. Const. L. Blog, Jul. 14, 2026, at: http://www.iconnectblog.com/make-brazils-1988-constitution-great-again/