INTERNATIONAL: The Federalist Papers: The contribution of James Madison, Alexander Hamilton, and John Jay to the emergence of Federalism in Brazil. The Spiritual War Against Judicial Corruption by Scott Erik Stafne

The Federalist Papers: The contribution of James Madison, Alexander Hamilton, and John Jay to the emergence of Federalism in Brazil, and  the Spiritual War Against Judicial Corruption by Scott  Erik Stafne 

#justice​ #faith​ #doyourpart​ #corruption​ 

The war against judicial corruption is a spiritual one that has always been fought in the conscience of humankind. 

Indeed, one of the first and foremost tasks of sovereigns since the beginning of time has been the establishment of judicial systems by which the governed can obtain justice regarding their disputes between one another.

 History demonstrates that from very early on, well before the birth of Christ, humanity has always understood at the spiritual level that justice can only be achieved through neutral and independent judges.

 That means through judges who don’t have an interest in the disputes they are deciding for the people.

Our judges in America today appear to have forgotten this lesson. 

Our federal judges appear to have backtracked on the progress our earliest human ancestors have provided mankind, humankind, in order to benefit themselves. 

The founders of this nation did not intend that federal judges would betray the people in this regard. 

For as one of the most illustrious of them wrote back then in urging that the Constitution be adopted, (at that point in history, which was well beyond the point where neutral judges had been required), James Madison wrote then was, and still applies today,

 “Justice is the end of government.  It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit.” 

We in America need to restore systems of justice to this country. And now is the time to do so. 

Thank you.

-Scott Erik Stafne

GEMINI AI ANALYSIS: 

O vídeo "The Spiritual War Against Judicial Corruption Scott E. Stafne The Church of the Gardens's Advocate" discute a corrupção judicial e a necessidade de restaurar a justiça nos Estados Unidos (0:00-0:03).

Os principais pontos abordados no vídeo incluem:

A guerra contra a corrupção judicial é uma guerra espiritual (0:00-0:07).

Desde o início dos tempos, uma das principais tarefas dos soberanos tem sido o estabelecimento de sistemas judiciais para que os governados possam obter justiça (0:11-0:29).

A humanidade sempre entendeu, a nível espiritual, que a justiça só pode ser alcançada através de juízes neutros e independentes (0:31-0:52).

Os juízes federais americanos parecem ter esquecido essa lição e retrocedido no progresso feito pelos ancestrais da humanidade para se beneficiarem (1:07-1:25).

Os fundadores da nação não pretendiam que os juízes federais traíssem o povo (1:29-1:36).

James Madison escreveu que a justiça é o fim do governo e da sociedade civil, e que será perseguida até ser obtida ou até que a liberdade seja perdida na busca (2:04-2:26).

Stafne enfatiza a necessidade de restaurar os sistemas de justiça no país e que agora é a hora de fazê-lo (2:33-2:46).

A HORA DE RESTAURAR A INTEGRIDADE JUDICIAL É AGORA ! 

Devido à extensão e complexidade técnica do artigo jurídico fornecido, apresento abaixo uma tradução fiel dos pontos centrais e das seções estruturantes para o inglês, seguida pela análise da integridade judicial correlacionada às teses de Scott Erik Stafne e James Madison.

Part 1: Literal Translation (Selected Core Sections)

Title: The Federalist Papers: The contribution of James Madison, Alexander Hamilton, and John Jay to the emergence of Federalism in Brazil.

Author: Rogério de Araújo Lima.

Introduction:

"The reading of classic works of political philosophy has been systematically relegated to a secondary plane in many Brazilian universities... Access to the original text remains restricted to graduate students... making the knowledge of the theoretical contribution of the classics a privilege of a few."

Historical Origin:

"The modern federative form was not structured on theoretical bases. It is the product of a successful experience — the North American experience. The federations attempted in Antiquity were all unstable and ephemeral." "The Federal State was truly born with the Constitution of the United States of America in 1787."

Judicial Characteristics in Federalism:

"Sahid Maluf describes as essential characteristics of the federative system: ... b) a judicialist system, consisting of the greater amplitude of the Judicial Power."

Conclusion:

"The federation developed in Brazil... may be the object of various criticisms, but there is something that cannot be forgotten: there is no model of State form in the current world better than the one advocated by the 'federalists'. It can — and even must — be rediscussed and improved, but never suppressed."

Click here to read the article

https://www12.senado.leg.br/ril/edicoes/48/192/ril_v48_n192_p125.pdf

Part 2: Análise da Integridade Judicial e Impacto no Futuro das Nações

A preservação da integridade judicial é o pilar que sustenta a estrutura de qualquer Estado Democrático de Direito. Quando a corrupção avança sobre o Judiciário, o "fim do governo" — que, segundo James Madison no Federalista nº 51, é a justiça — é pervertido.

1. A Justiça como Objetivo Central do Governo

O vídeo de Scott Erik Stafne ressalta que a principal tarefa dos soberanos sempre foi estabelecer sistemas onde as pessoas pudessem obter justiça. O texto de Rogério de Araújo Lima corrobora essa visão ao destacar que os "Artigos Federalistas" foram escritos para sustentar uma Constituição que buscasse uma união mais perfeita e segura. Se o juiz deixa de ser um árbitro neutro para buscar o benefício próprio, como denuncia Stafne, a base teórica do federalismo e do republicanismo — a separação de poderes — colapsa.

2. O Impacto da Corrupção Judicial no Futuro das Nações

A corrupção judicial não é apenas um crime financeiro; é uma "guerra espiritual" na consciência humana, como define Stafne.

 * Instabilidade Institucional: O artigo anexado explica que a transição da Confederação para a Federação nos EUA visava corrigir a "paralisia" do governo. Uma magistratura corrupta gera uma paralisia moderna, onde as leis existem, mas não são aplicadas de forma equânime, levando ao descrédito das instituições.

 * Reflexo no Modelo Brasileiro: O texto menciona que o federalismo brasileiro, embora inspirado no americano, possui peculiaridades orgânicas e hierárquicas. Em nações onde o poder central é forte, a integridade do Judiciário é ainda mais crítica, pois ele é o último baluarte contra o arbítrio estatal ou a influência de grupos econômicos.

3. Correlação: Madison, Stafne e a Restauração da Justiça

Stafne cita James Madison para lembrar que a justiça é a razão de ser do governo. No artigo de Lima, vemos que Alexander Hamilton lutou por um governo nacional "vigoroso" para garantir a prosperidade política.

A correlação é clara:

 * O Diagnóstico: Ambos concordam que a fragilidade institucional (seja pela falta de um braço executivo/judiciário forte no passado, ou pela corrupção atual) leva ao caos social.

 * A Solução: Assim como os Federalistas propuseram uma nova Constituição para salvar a união em 1787, Stafne convoca uma restauração dos sistemas de justiça atuais. 

A integridade judicial não é um detalhe administrativo, mas a condição sine qua non para que o "grande sistema americano" (ou brasileiro) não sucumba à decadência interna.

Em suma, a restauração da integridade judicial é urgente porque, sem juízes independentes e neutros, o contrato social descrito pelos clássicos da filosofia política torna-se uma "vulgata" sem valor prático, ameaçando a própria existência da Federação.

Restoring Judicial Integrity: An Analysis Based on "The Federalist Papers" and Scott E. Stafne

The preservation of judicial integrity is the pillar that supports the structure of any Democratic State under the Rule of Law. When corruption advances within the Judiciary, the "end of government"—which, according to James Madison in Federalist No. 51, is justice—is perverted.

1. Justice as the Central Objective of Government

Scott Erik Stafne emphasizes that the primary task of sovereigns has always been to establish systems where people could obtain justice. This vision is supported by the study of the "Federalist Papers," which were written to sustain a Constitution seeking a more perfect and secure union. If a judge ceases to be a neutral arbiter to seek self-benefit, the theoretical foundation of federalism and the separation of powers collapses.

2. The Impact of Judicial Corruption on the Future of Nations

Judicial corruption is not merely a financial crime; it is a "spiritual war" within the human conscience.

 * Institutional Instability: The transition from Confederation to Federation in the U.S. aimed to correct government "paralysis". A corrupt judiciary creates a modern paralysis where laws exist but are not applied equitably, leading to the discredit of institutions.

 * Reflections on the Brazilian Model: Although inspired by the American model, Brazilian federalism has its own organic and hierarchical peculiarities. In nations with strong central power, the integrity of the Judiciary is even more critical, as it serves as the final bulwark against state arbitrariness or the influence of interest groups.

3. Correlation: Madison, Stafne, and the Restoration of Justice

There is a clear correlation between the founders' intent and modern calls for reform:

 * The Diagnosis: Both agree that institutional fragility (whether due to the lack of a strong judicial branch in the past or current corruption) leads to social chaos.

 * The Solution: Just as the Federalists proposed a new Constitution to save the union in 1787, there is a contemporary need to restore justice systems. 

Judicial integrity is the sine qua non condition for any "great system" to avoid internal decay.

In summary, the restoration of judicial integrity is urgent because, without independent and neutral judges, the social contract described by the classics of political philosophy becomes a "vulgata" without practical value, threatening the very existence of the Federation.

Esta é a tradução literal da Página 1 do artigo anexado:

The Federalist Papers
The contribution of James Madison, Alexander Hamilton, and John Jay to the emergence of Federalism in Brazil

Rogério de Araújo Lima

Rogério de Araújo Lima is Assistant Professor III and Head of the Department of the Law Course at the Seridó Higher Education Center (CERES), of the Federal University of Rio Grande do Norte (UFRN). Master in Legal Sciences from the Federal University of Paraíba (UFPB). Specialist in Tax Law from Anhanguera-UNIDERP University. Lawyer.

Brasília v. 48 n. 192 Oct./Dec. 2011

Summary

 * Introduction. 2. Federalism: historical origin. 2.1. North American Federalism. 2.2. The contribution of James Madison, Alexander Hamilton, and John Jay to the emergence of modern federalism. 3. Characteristics of federalism. 4. Federalism in Brazil. 4.1. Political-constitutional structure of Brazil: from the colonial period to the republican period. 5. Final considerations.

1. Introduction

The reading of works by the classics of political philosophy has been systematically relegated to a secondary plane in a large part of Brazilian universities, which replace the indispensable reading of these works with "manuals" that, not infrequently, result in a kind of vulgata of classical political thought. 

Access to the original text remains restricted to students in postgraduate programs that include the study of classical political philosophy in their curricular structure, making knowledge about the theoretical contribution of the classics a privilege of a few. 

Within this context, and starting from the understanding that the study of the classics of political philosophy based on their own works—and not only those of their commentators—is of fundamental importance for the real understanding of prominent political and legal institutes of the contemporary world, we will proceed to develop a discussion around the political-constitutional principle of federalism adopted by Brazil since its independence, based on the work "The Federalist Papers," by James Madison, Alexander Hamilton, and John Jay (1993).

In this work, considered by Thomas Jefferson the best commentary ever written on principles of government, the theoretical bases of the political structure chosen by Brazil are traced, such as republicanism, presidentialism, representative democracy, and federalism.

The object of the study that now begins will be federalism, considered the highest realization of the principles of constitutionalism and which has in the "Federalist essays, which Hamilton published between 1787 and 1788, in collaboration with Jay and Madison, to support the ratification of the American federal Constitution [...], the first and one of the most complete formulations of the theory of the federal State" (LEVI, 1998, p. 480).

To understand the federalism existing today in Brazil, we will seek, at first, to recall its historical origins, with emphasis on the North American federative system and the respective theorization in "The Federalist Papers". 

Next, the characteristics of the federated form of State will be described and analyzed, immediately moving on to viewing them in the Brazilian context, whose peculiarities in relation to the model inherited from the North American system will be noted.

2. Federalism: historical origin

Regarding the genesis of the State form called federalist, most scholars converge in stating that it is a modern phenomenon, a recent debate, which would have emerged, in fact, in the 18th century, from the Constitution of the United States of America, dated 1787. Federalism would be, in this way, the fruit of the North American experience in the period between 1776 and 1787, whose theorization is attributed to James Madison¹, Alexander Hamilton², and John Jay³, authors of the work "The Federalist Papers".

Regarding possible experiences of federalism before the 18th century, the lesson of Sahid Maluf (1995, p. 166) is valuable:

> "The modern federative form was not structured on theoretical bases. It is the product of a successful experience — the North American experience. The federations attempted in Antiquity were all unstable and ephemeral."

> 

Notas de rodapé da Página 2:

¹ James Madison (1751-1836), considered the "father" of the United States Constitution, was born in Virginia to an old and influential family. A tireless writer, meticulous planner, and strategist, he had a decisive participation in the Constitutional Convention....

² Alexander Hamilton (1757-1804) was born in the West Indies and went to America at sixteen years of age. During the War of Independence, he emerged from anonymity as an artillery captain....

³ John Jay (1745-1829), son of a wealthy New York merchant, studied at Columbia University. Jurist and diplomat, he established a solid intellectual reputation still during British rule.

> "...They became extinct before they could prove positive results in light of the problems that inspired them. Only Switzerland has maintained itself until now, conserving, in general terms, the basic principles of the old Helvetic Confederation, of a federative nature, which is explained by its geography and by the constant presence of a fearsome enemy at its side. 

The historical examples were experiences of political decentralization, which is a primary characteristic of the federative system. Simple administrative decentralization consisting of the autonomy of local districts (provinces, communes, councils, municipalities, cantons, departments, or districts), as occurred in ancient Greece and occurs in current Spain, is a municipalist system, and not federative."

> 

In the same sense, Dalmo de Abreu Dallari (1998, p. 255), referring to the impossibility of the existence of a federation in Antiquity and the Middle Ages, states:

> "In reality, as will be seen, the Federal State is a modern phenomenon, which only appears in the 18th century, not having been known in Antiquity and the Middle Ages. Undoubtedly, there were many alliances between States before the 18th century, but almost always temporary and limited to certain objectives, not involving the totality of the interests of all members. The Federal State was truly born with the Constitution of the United States of America, in 1787."

> 

It is evident, from such observations, that the North American context of the 18th century can be pointed to as the environment in which the theorization of the modern conception of federalism was developed, as well as that past experiences were nothing more than alliances with specific objectives and for a determined time. Given this, it is necessary to begin a more detailed study about the bases of the federative system of the United States of America, under the nationalist view of the authors of "The Federalist Papers", responsible for the political-legal framework of the American Constitution of 1787.

2.1. North American federalism

As established previously, the federative form we know today is a product of the experience lived by the United States of America, especially in the period between the declaration of its independence (1776) and the approval of its Constitution (1787), the latter considered a landmark of modern federalism. Living under the yoke of British domination for a long period, the thirteen North American colonies declared themselves independent in 1776. According to the lesson of Professor Fredys Orlando Sorto (1996, p. 134):

> "The colonies had enjoyed ample freedom during the colonial administration [...]. After the Seven Years' War (1763), which culminated in the Treaty of Paris, England imposed restrictions on colonial trade and taxed various products. Sugar (Sugar Act, 1764) and all material printed in the colonies (Stamp Act, 1765) were taxed. This last tax, instituted by the so-called Stamp Law, provoked a violent reaction from the colonists, who formed an association called Sons of Liberty to fight the said law."

...in 1775. In this one, war was declared against England. A year later, the independence of the thirteen colonies would be declared. There, the formation of the American State begins.

To consolidate independence, the thirteen colonies, now constituted as free States, needed to unite to face England's reaction. Thus, aiming primarily at common defense, they united, in 1781, under the contractual form of a Confederation of States. 

This form of union of States was instituted by a treaty, called "Articles of Confederation," which created the Continental Congress, the only central institution with integrating functions, and established, in its second article, that "each State retains its sovereignty, freedom, and independence," creating a mechanism that would be nothing more than "a loose alliance of sovereign and independent States". 

The greatest fragility of the Articles of Confederation consisted in not having established any executive arm for the central government, much less a central judicial power. 

And the continental congress, which was a unicameral legislature, possessed practically no power. Meanwhile, disregarding the Articles of Confederation, the thirteen States, which had their own Constitutions, lived under the aegis of the so-called "politics of liberty," that is, a policy in which there was the absolute predominance of the legislature. Regarding the excessive freedom exercised by the States, Isaac Kramnick gives us the following lesson:

> "The politics of liberty in the States meant the absolute dominance of the legislative. Not only was the governor, who represented the principle of the magistrate's command, stripped of most of his power, but in many States the Judiciary was also made subservient to the legislatures. Judicial decisions and terms of office were controlled by legislators, as well as salaries and emoluments [...]. Practically all traditional notions of separation of powers were abandoned in the States. The dominant assumption was that a free government is one in which the legislature was the people themselves."

> 

There was, in the regime of the "politics of liberty," a true disorder in the relations between the colonies:

> "Seven of the thirteen States printed their own money. Many passed tariff laws contrary to the interests of their neighbors. Nine of the thirteen had their own navy, and frequently seized ships from other States. There was continuous dispute over boundaries, besides conflicting claims over the western territories."

> 

To put an end to the chaos installed in America under the Articles of Confederation, an effort was made, led by James Madison, Alexander Hamilton, and George Washington, which would culminate in the Philadelphia Convention, which would transform the fragile Confederation into a closer and more definitive union: the federative form of State. 

America, from that moment on, would be structured under the auspices of a Constitution and no longer a Treaty. It would leave aside a fragile alliance of States to consolidate a close connection between the people. 

The North American federation was formed.

However, to definitively consolidate this new form of State, it was necessary, according to article number seven of the 1787 Constitution, for it to be ratified by the States. The event that would generate one of the most important political debates that humanity has ever experienced.

2.2. The contribution of James Madison, Alexander Hamilton, and John Jay to the emergence of modern federalism

Among the classics of political philosophy, James Madison, Alexander Hamilton, and John Jay deserve highlight for the valuable contribution they gave to political theory, with the masterful work that resulted from their efforts in search of the ratification of the United States Constitution after the Philadelphia Convention. It concerns the work "The Federalist Papers".

It emerged, to repeat, in the context of the ratification of the United States Constitution of 1787. It corresponds to a set of 85 articles signed by "Publius" (a collective pseudonym used by Madison, Hamilton, and Jay) and published in the New York press between the years 1787 and 1788. 

The work was structured in the following way:

> "The first section, numbers 1-37, outlines in great detail the problems and inadequacies of the articles of the Confederation and of confederations in general. It is followed by a section, numbers 38-51, dedicated to presenting the general principles of the Constitution and investigating whether or not these principles best meet the needs of the Union. 

Next, the separate arms of the new federal government are described: numbers 52-61 dedicated to the House of Representatives, numbers 61-65 to the Senate, numbers 66-77 to the Presidency, numbers 78-83 to the federal judiciary. Two concluding articles complete the coherent whole sketched by Hamilton in No. 1, on October 27" (KRAMNICK, 1993, p. 77).

> 

The content upon which the federalists would dwell was exposed by Hamilton in Art. 1 of "The Federalist Papers":

> "I propose to discuss, in a series of articles, the interesting topics that follow: the utility of the Union to your political prosperity — the insufficiency of the current Confederation to preserve that Union — the necessity, for the achievement of this goal, of a government at least as vigorous as the one proposed — the conformity of the proposed Constitution with the true principles of republican government — its analogy with your own state constitution — and finally, the additional security that its adoption will provide to the preservation of that species of government, to liberty, and to property" (KRAMNICK, 1993, p. 96).

> 

Despite the relevant legacy we inherited from the authors of "The Federalist Papers," such as presidentialism, republicanism, and representative democracy, our study will take place around their contribution to the emergence of the federated form of State that we know today. As has already been consolidated:

> "Experience demonstrated, in a short time, that the bonds established by the confederation were too fragile and that the union resulting from it was not very effective. Although there was a generalized feeling of solidarity, there were also conflicts of interest, which harmed joint action and threatened the very subsistence of the Confederation.

 To proceed with the revision of the Articles of Confederation, correcting the flaws and gaps already revealed by practice, the States, through representatives, met in Convention in the City of Philadelphia, in May 1787, absent only the small State of Rhode Island. From the outset, however, two substantially diverse positions were revealed among the members of the Convention."

> 

> "...substantially diverse among the members of the Convention. On one side were those who intended, only, the revision of the clauses of the Treaty and, on the other, a current that intended to go much further, proposing the approval of a Constitution common to all States, with the consequent formation of a government to which all would submit. In other words, they proposed that the confederation be converted into a federation, constituting a Federal State" (DALLARI, 1998, p. 256).

> 

Thus, the need for a central power to correct the flaws of the existing model under the "Articles of Confederation," as well as a strong government that would provide security for the incipient nation, led "Publius" to advocate for a federative form of State, the only model in which it would be possible to achieve such objectives.

In this regard, in article 15, Alexander Hamilton pronounced:

> "The great and radical vice in the construction of the existing Confederation is in the principle of legislation for States or Governments, in their corporate or collective capacities, as contradistinguished from the individuals of whom they consist.

 Though this principle does not run through all the powers delegated to the Union, yet it pervades and governs those on which the efficacy of the rest depends. 

Except as to the rule of apportionment, the United States has an indefinite discretion to make requisitions for men and money; but they have no authority to raise them by regulations extending to the individual citizens of America. 

The consequence of this is, that though in theory the resolutions of the Union regarding these matters are laws which constitutionally apply to its members, in practice they are mere recommendations which the States can choose to observe or disregard (p. 160-161). [...] In our case, under the Confederation, the concurrence of thirteen sovereign wills is requisite to the complete execution of every important measure that proceeds from the Union. What was to be expected happened. The measures of the Union have not been executed; the infractions of the States have been proceeding step by step until an extreme in which, finally, they have stopped all the wheels of the national government, bringing it to a terrible paralysis. At this moment, Congress has hardly the means to maintain the forms of administration until the States have time to agree on a more solid substitute for the present shadow of a federal government" (MADISON; HAMILTON; JAY, 1993, p. 164).

> 

In another passage of "The Federalist Papers" (MADISON; HAMILTON; JAY, 1993), the same Hamilton, who possessed a grandiloquent vision for the United States, states:

> "Under a vigorous national government, the natural strength and resources of the country, directed to a common interest, would baffle all the combinations of European jealousy to restrain our growth. This situation would even eliminate the reason for these combinations, by convincing of the impossibility of their success. An active commerce, an extensive navigation, and a flourishing navy would then be the inevitable result, by moral and physical necessity. We might defy the little arts of little politicians to control or vary the irresistible and unchangeable course of nature (p. 142). [...] The Union will enable us to do this. Disunion will add another victim to its triumphs. Let Americans disdain to be the instruments of European greatness! Let the thirteen States, bound together in a firm and indissoluble Union, concur in erecting one great American system, superior to the control of all transatlantic force or influence, and able to dictate the terms of the connection between the Old and the New World!" (p. 145).

> 

3. Characteristics of federalism

The federative form of State presents fundamental characteristics that distinguish it from other forms of political organization, such as the unitary State or the Confederation. According to Sahid Maluf (1995, p. 167), the federative system is based on the following principles:

> "a) the distribution of competences between the central government and the governments of the federated States;

> b) the existence of a specific legal order for each member-State, arising from the derivative constituent power;

> c) the participation of member-States in the formation of the national will, generally through a representative chamber (Senate);

> d) the existence of a body for the control of constitutionality, to guarantee the supremacy of the Federal Constitution and resolve conflicts between the federated entities."

> 

In turn, Darcy Azambuja (1998, p. 382) highlights that "the Federal State is that which is divided into particular states, each with its administrative and political autonomy, but all subjected to a central authority, which is the Federal State itself".

It is important to observe that the autonomy of member-States must not be confused with sovereignty. In modern federalism, sovereignty is an attribute of the Federal State (the Union on the international level), while the member-States possess only political, administrative, and legislative autonomy, within the limits established by the Federal Constitution.

This distinction is fundamental for the maintenance of national unity. As James Madison warned in Article No. 45:

> "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; the powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State" (MADISON; HAMILTON; JAY, 1993, p. 482).

> 

Therefore, the striking characteristic of federalism is the coexistence of distinct and harmonic legal orders under the aegis of a single Fundamental Law, which guarantees the balance between the central power and local autonomies.

This is the literal translation of Page 8 of the article:

[Translation of Page 8]

4. Federalism in Brazil

After analyzing the general characteristics and the historical origin of federalism, it is necessary to examine its implementation and development in the Brazilian reality. Brazil adopted the federative form of state with the Proclamation of the Republic in 1889, influenced directly by the North American model, although it has developed its own characteristics over more than a century of Republican history.

According to the lesson of José Afonso da Silva (2003, p. 477):

> "The Brazilian Federation was not formed by the union of independent states, as occurred in the United States, but rather by the decentralization of a previously unitary State. This original difference marks the entire evolution of our federalism, which has always oscillated between periods of greater centralism and moments of search for greater state autonomy."

> 

4.1. Political-constitutional structure of Brazil: from the colonial period to the republican period

During the colonial period and the Empire, Brazil was a unitary State. The 1824 Constitution established a centralist government, where the provinces had no political autonomy, being mere administrative divisions of the central power. The figure of the Moderator Power, exercised by the Emperor, further reinforced this centralizing character.

The transition to federalism occurred through Decree No. 1, of November 15, 1889, which proclaimed the Republic and transformed the old provinces into "Federated States." This change was consolidated in the first Republican Constitution of 1891, which was deeply inspired by the work of the authors of "The Federalist Papers."

However, unlike the American model, which resulted from an "aggregation" (centripetal movement) of sovereign states, Brazilian federalism was born from a "segregation" (centrifugal movement) of a unitary power. This means that, in Brazil, the Union was the entity that "distributed" powers to the states, while in the USA, the states were the ones that "ceded" part of their powers to the Union.

In the current 1988 Constitution, Brazilian federalism reached its highest degree of complexity by including the Municipalities as third-degree federated entities, alongside the Union, the States, and the Federal District. Article 1 of the Constitution establishes the "indissoluble union of States and Municipalities and the Federal District," which characterizes a tripartite federalism, unique in the world.

Would you like me to proceed to Page 9?

4.1. Political-constitutional structure of Brazil: from the colonial period to the republican period

Until the elevation of Brazil to the category of United Kingdom to Portugal, a fact that occurred in 1815, our country lived, during the phase called colonial, under a political-constitutional structure that had as models, first, the hereditary captaincies; second, the general-governorships.

In the system of hereditary captaincies, the territory of the Colony was divided into twelve parts, which were donated to private individuals called donataries; in fact, Portuguese considered illustrious for having distinguished themselves in wars in Africa and Asia. According to José Afonso da Silva (1998, p. 71):

> "Of the twelve captaincies, few prospered, but they served to create dispersed nuclei of settlement and almost without contact with one another, contributing to the formation of centers of differentiated economic and social interests in the various regions of the colony's territory, which came to repercuss in the structuring of the future Brazilian State".

> 

Being their only common source the Metropolis, this set of autonomous regions, without any link between them, had as its main characteristic the pulverization of political and administrative power. Fifteen years after the granting of the first hereditary captaincy, donated in 1534 to Duarte Coelho (Captaincy of Pernambuco), the system of general-governorships is instituted. The aim with this new model was to introduce a unitary element that could curb the political and administrative dispersion established with the captaincy system. Such an objective was fated to failure:

> "The unitary system, inaugurated with Tomé de Sousa, breaks in 1572, instituting the double government of the colony, which resumes unity five years later. In 1621 the colony is divided into two 'States': the State of Brazil, comprising all the captaincies, which extend from Rio Grande do Norte to São Vicente, to the south; and the State of Maranhão, embracing the captaincies from Ceará to the far north. Under the impulse of economic, social, and geographical factors and interests, these two 'States' fragment and new autonomous centers emerge subordinated to effective regional and local political-administrative powers. The captaincies themselves are subdivided driven by new economic interests, which are being formed in the colonial evolution" (SILVA, 1998, p. 73).

> 

The fracture of the general government provoked its division into regional governments, which, in turn, were divided into general captaincies; from these, captaincies stood out which, initially subordinated to them, later became autonomous, forming an intricate system of division of power, which Oliveira Viana, cited by José Afonso da Silva (1998, p. 73), will call "local little-governments":

> "In each of these administrative centers the captain-general distributes the representatives of his authority to the local organs of the general government: the 'hearers' (ouvidores), the 'judges from outside' (juízes de fora), the 'chief-captains' (capitães-mores) of the villages and hamlets, the 'commandants of detachments' of the settlements, the 'chiefs of border prisons', the 'chief-captains' regents of the recently discovered regions, the regiments of the 'line troop' of the borders, the battalions of 'militiamen', the 'third parties of ordinances', the 'flying patrols' of the ends of the gold regions. These centers of local authority, subordinated, in theory, to the general government of the captaincy, end up, however, becoming practically independent of the central power, embodied in the high authority of the captain-general. Local little-governments are formed..."

> local little-governments are formed, represented by the all-powerful authority of the chief-captains of the villages; the local caudillos themselves, insulated in their large estates, in the solitudes of the high backlands, exempt themselves, by their very inaccessibility, from the disciplinary pressure of public authority; and they become centers of effective authority, monopolizing the political authority, the judicial authority, and the military authority of the constituted powers.

The general structural lines of the political-constitutional system were thus sketched, which would culminate with Independence, bringing to light the problem of national unity and the institution of federalism as an adequate model to solve it.

The monarchical phase experienced by Brazil occurred due to the arrival of D. João VI and his entourage, established in Rio de Janeiro in 1808.

The settlement of the royal family in Brazil would exert a strong influence on the political-constitutional model to be adopted. In the observation of Sahid Maluf (1995, p. 359):

> "With the transmigration of the Court of D. João VI and the opening of the ports to foreign trade, in 1808, with Brazil having acquired the condition of united kingdom to Portugal and the Algarves, an irresistible desire for liberation dominated the country. From then on [...] the evolution of ideas, in the colony, was characterized by a pronounced and constant tendency toward independence, toward the republican form of government, and toward the federative regime."

> 

This did not happen by chance. Even with the organization of power that the Crown printed, creating, for example, the Council of State, the General Intendancy of Police, and the Military Council, it was not possible to achieve success beyond the limits of Rio de Janeiro, and "it exerted little influence in the interior of the country, where the fragmentation and differentiation of royal and effective power persisted, sedimented in the three centuries of colonial life" (SILVA, 1998, p. 75).

This was a very propitious scenario for the debate of ideas that were swarming in Europe, such as Democracy, Liberalism, and Constitutionalism.

Around these and other discussions, the ideal of independence grew among Brazilians. Thus,

> "The Prince-Regent [...], perceiving that independence was irrepealably decreed by public opinion, had the skill to place himself at the head of the revolution, transforming it into a coup d'état. It was this fact that directed the political problem toward the monarchical solution. Otherwise, the revolution would be triumphant, and the Brazilian State would be born republican" (MALUF, 1995, p. 359).

> 

With independence comes the problem of national unity, whose nerve center was excessive regional and also local power. The remedy: constitutionalism, which would bring with it liberalism, the division of powers and, later, federalism.

The great challenge that henceforth presented itself was to establish a mechanism that could equate the bases on which the new political-constitutional format was founded with a monarchical-absolutist regime, not tolerated by the defenders of the principles in vogue.

From the Political Constitution of the Empire of Brazil of 1824 resulted a centralizing political-constitutional system with power concentrated in the monarch, and which would only succumb in 1889, after several frustrated attempts to implement a federalist monarchy in Brazil.

Brasília v. 48 n. 192 Oct./Dec. 2011 135

In the taxative statement of José Afonso da Silva (1998, p. 79):

> "The Empire falls under the impact of new material conditions, which made possible the dominance of those old ideas with new clothing, and 'one day, on a beautiful morning, a simple military parade' proclaims the Federative Republic by a decree (no. 1, of 11.15.1889, art. 1st)."

> 

With the end of the Empire and the republican regime consecrated, the provinces of Brazil gathered by means of the federation, a form of State officially established in all its Constitutions since that of 1891.

Despite the unquestionable influence of the North American Constitution on our choice for this or that political-constitutional model, Sahid Maluf (1995, p. 169) teaches us that, "contrary to the North American example, Brazilian federalism emerged as the fatal result of a movement from the inside out and not from the outside in; of centrifugal force and not centripetal; of natural-historical origin and not artificial."

However – the eminent constitutionalist recognizes –, "the 1891 Constitution structured Brazilian federalism according to the North American model. It adjusted a completely diverse reality to a foreign legal-constitutional system" (MALUF, 1995, p. 170).

Perhaps to this can be attributed the failure, the social inefficacy of this Constitution, but one cannot deny its institutional genesis of federalism in Brazil.

5. Final considerations

Taking into consideration the peculiarities of the institution of federalism in Brazil and making a counterpoint with the North American experience, it is necessary to recognize the strong influence of "The Federalist Papers" and the North American Constitution of 1787 in the emergence of the "typical" Brazilian federalism.

In this context, it would be unreasonable to suppose that the process of implementing the federative form of state in Brazil was "identical" to the North American one. These are distinct realities, but which seek to be based on the same source, which was the opportunity for the theorization of what federalism came to be, carried out with grandiloquence by James Madison, Alexander Hamilton, and John Jay in "The Federalist Papers."

What was defended at the beginning of this essay was exactly the necessity of visiting the classics of political philosophy for the real understanding of the context in which the federative form of state adopted by Brazil is inserted.

And this was achieved by analyzing the original text written by "Publius" (James Madison, Alexander Hamilton, and John Jay), which highlights the advantages of adopting such a system for national unity.

The federation developed in Brazil, of a predominantly organic nature and based on the hierarchy of the central power (Union), can be the object of the most varied criticisms, but there is something that cannot be forgotten: there is no model of State form in the current world better than the one advocated by the "federalists." It can – and even must – be rediscussed and improved, but never suppressed.

References

Federalists. Translated by Maria Luiza X. de A. Borges. Rio de Janeiro: Nova Fronteira, 1993, p. 9-11.

LEVI, Lucio. Federalismo. In: BOBBIO, Norberto; MATTEUCI, Nicola; PASQUINO, Gianfranco (Org.). Dicionário de política. 11th ed. Brasília: Ed. UnB, 1998, v. 1, p. 475-486.

MADISON, James; HAMILTON, Alexander; JAY, John. Os artigos federalistas. Translated by Maria Luiza X. de A. Borges. Rio de Janeiro: Nova Fronteira, 1993.

MALUF, Sahid. Teoria geral do estado. 23rd ed. São Paulo: Saraiva, 1995.

REGIS, André. O novo federalismo brasileiro. Rio de Janeiro: Forense, 2009.

RUBY, Christian. Introdução à filosofia política. Translated by Maria Leonor F. R. Loureiro. São Paulo: UNESP, 1998.

SILVA, José Afonso da. Curso de direito constitucional positivo. 15th ed. São Paulo: Malheiros, 1998.

SORTO, Fredys Orlando. O federalista e a constituição dos Estados Unidos. Revista Brasileira de Estudos Políticos, Belo Horizonte, n. 82, p. 134-158, Jan. 1996.

SOUZA, Adalberto Pimentel Diniz de. A mecânica do federalismo. Revista de Informação Legislativa, Brasília, v. 42, n. 165, p. 169-176, Jan./Mar. 2005.

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