THE HIGH COST OF GETTING THE dEEP sTATE WRONG:

The traditional division of power, since Montesquieu's The Spirit of the Laws, has been one of three branches of power, the executive, the legislative, and the judiciary, all of them having popular sovereignty as the sole source of their legitimacy.

Benjamin Constant later proposed a different separation of power. It was based on the recognition that in England, the quintessential constitutional monarchy at his time, in the words of Adolphe Thiers: "the king rules but does not govern." Based on that observation, Constant proposed that the king had a "moderating" power, with the executive power vested in the cabinet of ministers, and the king acting as an impartial "judge" of the political game. Constant is mostly understood as describing, in more detail, a liberal conception of constitutional monarchy with popular sovereignty exercised by a parliament, and not as challenging such conception.

However, that was not what was institutionalized in Brazil.   

The charter Dom Pedro I gave the country concentrated power in his hands to intervene in the political process whenever he deemed it necessary. To that end, he institutionalized a power of "tutelage" of the exercise of popular sovereignty for himself. The emperor at his sole discretion could fire the cabinet, dissolve the parliament, call new elections, command the armed forces, and enjoy legal immunities, among other prerogatives. Soon he abused that power. A crisis ensued and, for all practical purposes, he was forced to resign in 1831. His son, Dom Pedro II, exercised that power more prudently, if not more sparingly, until the monarchy was abolished by a military coup in 1889.

Although Brazil, once it became a republic, has never again explicitly acknowledged the right of someone to exercise "tutelage" over the political process in its formal constitutions, first the army and more recently the Supreme Court have claimed such powers time and again.

Aside from other minor and not-so-minor incidents, Brazil had military coups in 1889, 1930, 1945, and 1964. More recently, the Supreme Court has claimed to have powers not considered by most legal scholars to be authorized by the current Brazilian constitution of 1988.

With more or less acknowledgment, all those instances of tutelage over the political process are manifestations of the "moderating power." It is part of the real, unwritten Brazilian Constitution.

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