Is the Constitution Still in Effect? Source Confidentiality and the Long-Standing Erosion of Constitutional Guarantees in Brazil

On August 11, Justice Alexandre de Moraes authorized a search and seizure operation against Raimundo Cutrim, former secretary of the Maranhão state government, whom the Federal Police identified as the source for journalist Luís Pablo’s reports on the use of an official vehicle by the family of Governor Flávio Dino. The measure reignited the debate over Article 5, Section XIV, of the Constitution, which guarantees the confidentiality of journalistic sources. Globo, Folha de S.Paulo, and Estadão criticized the decision in editorials published on August 13. Retired Justice Marco Aurélio Mello described the episode as incompatible with the democratic rule of law. Supreme Court Chief Justice Edson Fachin indicated that he will bring the case before the full Court.

Gilmar Mendes defended Moraes’s decision, arguing that source confidentiality cannot be used as a shield for criminal activity. This episode is often viewed as an isolated chapter in the dispute between the judiciary and the press. A more accurate interpretation requires looking further back in time.

American legal scholar Jack Balkin has described constitutional erosion as a cumulative process. Norms and guarantees are eroded by isolated violations that, taken individually, seem manageable. Taken together, they hollow out the constitutional framework from within. Source confidentiality is the most recent chapter in a trend that has been unfolding in Brazil for more than a decade.

The Long Fraying

Operation Car Wash represented the first major test of this pernicious pattern. On more than one occasion, lower court decisions anticipated elements of conviction even before the preliminary investigation phase of the case had ended—a practice that the Constitution itself considers incompatible with the presumption of innocence. That wave of unlawful judicial actions persisted for a long time, thanks to the leniency of the Federal Supreme Court itself, which tolerated it for years. The correction, however, came abruptly, only after a profound rupture in the system of constitutional individual guarantees, and can be viewed, in retrospect, as the starting point for the trivialization that followed.

The trial regarding the January 8 coup plot has reignited this same debate from a different angle. Throughout the proceedings, there was extensive debate over the extent to which the political demonstrations by supporters of former President Jair Bolsonaro constitute a legitimate exercise of free speech—a debate that resonated internationally, with U.S. officials citing the trial as evidence of restrictions on free speech in Brazil, an argument used to justify some of the tariff sanctions imposed on the country. The most sensitive issue lies not in the existence of the debate itself, but in the form of the response. Just as in the case of the breach of source confidentiality, the Supreme Court rules on specific cases without establishing a general rule to guide future decisions. Reviewing positions and updating concepts is a legitimate function of any court, whether moving toward a more rights-protective or a more restrictive approach. The problem lies elsewhere. There is no explicit revision, nor is there a new rule to replace the previous one. Principles are set aside in the specific case, but society is left without knowing what the new valid standard is for the future.

The Case of Banker Daniel Vorcaro

The case of banker Daniel Vorcaro illustrates how indefinite pretrial detention has become the norm. Arrested on March 3, 2026, by order of Justice André Mendonça, Vorcaro remains in custody to this day, even though the Public Prosecutor’s Office has not even filed formal charges against him. This is not about defending his innocence, but about the legal concept that justifies long-term pretrial detention. A July 2026 survey by the National Council of the Judiciary (CNJ) shows that nearly a quarter of Brazil’s prison population remains in custody awaiting trial, without a final sentence.

The Corporatism of Selective Outrage

The media’s reaction to the Luís Pablo case is understandable and, on its merits, correct. Source confidentiality is a constitutional guarantee, and its breach directly threatens investigative journalism. The problem lies elsewhere. For years, part of that same press treated incidents of equivalent gravity—indefinite pretrial detention, decisions that presume guilt before the end of the trial, selective leaks, illegal wiretaps, and restrictions on the right to a defense—as if they were normal, when these violations affected other sectors of society, not the press itself. The current outrage is legitimate. The absence of equivalent outrage in the past also says something about who decides what warrants public alarm.

The Fertile Ground

This pattern of selective tolerance creates room for increasingly drastic measures. The call to impeach Supreme Court justices—unthinkable just a few years ago as an election platform—has become routine in the 2026 pre-campaign. The Placar STF platform, launched this month, analyzed 331 Senate candidates and identified 61 who have publicly declared themselves in favor of impeaching Supreme Court justices, compared to 23 who oppose it. Senators Flávio Bolsonaro and pre-candidate Romeu Zema, both running for president, have made the issue a central campaign platform.

There is a coincidence that clearly illustrates the scale of the problem. In this election, 54 of the 81 Senate seats are up for grabs. That is exactly the number of votes needed to approve the impeachment of a Supreme Court justice. Gilmar Mendes downplayed the practical risk of the issue in an interview on August 19, but acknowledged that it holds real electoral appeal.

Is the Constitution Still in Effect?

The answer to that question lies in the cumulative sum of more than a decade of tolerated exceptions. Each was justified by the urgency of the moment. Each was applauded by those who benefited from it and ignored by those who did not feel threatened. Balkin describes this process as cumulative erosion. Steven Levitsky and Daniel Ziblatt reach a similar conclusion by a different route, showing that contemporary democracies rarely die from a single blow. They erode from within, as institutional actors gradually abandon the self-restraint that sustains the system.

Therefore, the question in the title is not merely rhetorical. The Brazilian Constitution, of course, remains in force. What has been changing over the years is the willingness to enforce its principles and guarantees universally, even when they protect unpopular individuals, political opponents, or those under investigation for serious crimes. A democracy is not measured by the force with which it punishes its enemies, but by the discipline with which it limits power when it believes it is in the right. If freedom, the right to a full defense, the right to a fair hearing, the right to a judge of one’s own jurisdiction, and impartiality are respected only when it is convenient—or to appease public outcry—then we can say that the Constitution will still exist on paper, but it will have ceased to hold sway in the soul of society.