From the Shoah to the 1988 Constitution

“Never Again” as the Historical Foundation for Constructing the Constitutional Mandate to Criminalize in Article 5, Section XLII

Abstract

This article investigates how the public memory of the Shoah and the ethics of “never again” became a historical-normative matrix for criminalizing racism in Brazil, with particular emphasis on classifying antisemitism as a modality of racism under the 1988 Constitution. The analysis reconstructs the semantic shift led by the Brazilian Supreme Court in HC 82.424/RS (Ellwanger), moving from a biologistic view of race to an understanding of racialization as a historical process, thereby enabling the subsumption of antisemitism under the constitutional concept of racism. Methodologically, it combines history, legal philosophy, and criminal dogmatics to argue that “never again” functions as a principle of interdiction of the intolerable, governed by proportionality and the prohibition of insufficient protection, and supported by an ecology of penal, civil, and educational instruments. It concludes that the normative force of the 1988 Constitution depends on translating memory into law and institutional practice through prevention, investigation, and education policies capable of restraining historically tested repertoires of dehumanization across analog and digital environments.