Bridging Past and Future: Transformative Constitutionalism and Directive Constitutions Amidst Authoritarian Challenges

Abstract

This article examines the intricate interplay between Transformative Constitutionalism, Directive Constitutions, and the erosion of constitutional values amid incremental authoritarian challenges, using Brazil as a case study. It explores a scenario in which a constitution, initially designed for progressive change, transforms into a shield against retrogression, challenging the conventional definition of Transformative Constitutionalism and Directive Constitutions as forward-oriented models of constitutionalism and constitutions. Focusing on the right to health within Brazil's 1988 Constitution, celebrated as a transformative cornerstone of the constitutional project, the study scrutinizes its trajectory under democratic periods and recent challenges from Jair Bolsonaro's presidency and the COVID-19 pandemic. The case study illustrates how an incremental transformative process faces setbacks, risking becoming a relic of the past. However, it can adapt by being mobilized as a preservative force, actively countering anti-rights initiatives. In these circumstances, it transforms into a resilient entity dedicated to safeguarding the principles it was originally designed to uphold. The study underscores the dynamic nature of constitutional projects and their potential for mobilization with reversed meanings, emphasizing the need for a nuanced understanding of the temporal axis in transformative constitutionalism and directive constitutions.