This is the first of two introductory posts in our symposium on socialist constitutionalism.
Willy Forbath –
Socialism is back. But what is socialism? We have forgotten a lot about what it meant in its salad days, a century ago. And what we have forgotten may include what might be compelling today.
Universal health care and basic income, public investment in green industry and infrastructure, radical changes in corporate governance, nationalizing fossil fuel: To skeptics and foes, all these ideas smack of socialism. What about those of us who support them? Does that make us socialists? What are the stakes in revisiting, and maybe reinventing, the socialist tradition?
This series of two blog posts is a rough, tentative, brief first pass at that question, using a bit of comparative constitutional law and history. Comparative constitutionalists are like everyone in forgetting much of what socialism – and socialist constitutions – were about in their heyday. I’ll point out a couple big, forgotten things that seem worth remembering in a time of democratic disrepair.
To generalize vastly, socialism is usually seen as falling into two varieties:
(A) State Socialism – which means government ownership of the means of production. The Soviet Union was one version of this. Nationalized industries, like railroads or oil, in many parts of globe, are another version.
(B) Social Democracy – which means a Northern European style welfare state: public provision of social goods and social insurance. When Bernie Sanders talks about democratic socialism, this is what he talks about. Healthcare for all; free higher education for all; and tax the rich to pay for the universal provision of these and other social goods.
Neither notion is exactly wrong. But neither one captures the core meaning of socialism in its historical heyday – not in the US; nor in Europe. And from what little I know (readers will correct me, I hope), not in Latin America, either.
Instead, the core meaning was something like this: Socialism means the extension of democracy and democratic institutions into economic life. Liberal democracy could not deliver on its promises of liberty and equality unless the precepts of democracy and republican self-rule were extended from the sphere of politics into the sphere of social and economic life.
From the French Revolution through the great wave of revolutions of 1848, to the late nineteenth-century American reform movements’ vision of transforming the U.S. into a Cooperative Commonwealth, to the municipal (or “sewer”) socialism, guild socialism, and many other varieties of early twentieth-century socialism that animated radical politics around the globe: In every case, the core meaning was not state ownership of industry, nor government provision of social goods like education, health care, and housing. It was about the redistribution of power and authority, and not simply the redistribution of wealth and goods. Only serious democratic power-sharing would ensure a political economy that produces not just goods but citizens. Besides, without such a redistribution of power over the organization and direction of the economy, how on earth would working people gain and hold on to the clout to ensure an egalitarian distribution of costly but essential social goods?
This understanding of socialism’s core democratic meaning chimes with a couple contemporary thinkers: the much-missed American sociologist Erik Olin Wright; the German philosopher, Axel Honneth. But their insights find almost no echo in constitutional thought. One of the most startling things about constitutional theory – especially in the U.S. but in the comparativist world too – is that it is very interested in the distribution of power between national and subnational levels of government, and it is riveted on the distribution of power between the branches of national government; but it seems blithely uninterested in the distribution of power between labor and capital – uninterested, if you will, in constitutional political economy. There are a handful of mavericks, almost all of whom contribute to this blogsite. But by and large, constitutional theory is indifferent to a question that deeply engaged these socialists, namely how to imagine and construct a constitutional order that helps redress and undo the ways that class inequality and deep asymmetries in the distribution of social and economic power undermine the guarantees of political equality on which constitutional democracy rests.
Let me bring this down to earth with an example from contemporary constitutional studies. Consider the vast comparative literature on constitutional social and economic rights (SER). SER made their first constitutional appearances in the early twentieth century. Germany’s and Mexico’s early twentieth-century constitutions are the best known examples. We know that the presence of SER in these constitutions was bound up with political movements that marched under socialists banners. Revolutionary socialist movements arose and seized state power or came close enough to it to shape constitution-making not only in Russia, but in Germany and what had been Austria Hungary, as well as in Mexico and elsewhere. Even in countries like the U.S., Great Britain, and France, where there were no revolutionary ruptures, there was a great ferment of socialist politics and socialist lawyering and a flowering of socialist constitutional thought and advocacy. Most of these socialisms were anti-Bolshevik; most rejected the notion of a dictatorship of the proletariat led by a vanguard party. What most meant by social democracy was not communism but democratic socialism.
Let us use the German constitution of 1919 – the Weimar Constitution – as a case study of an early SER constitution, and take a look at how SER fit into the broader social democratic constitutional outlook at the time. (I’ll begin this short exploration here, and continue in the second post.) Written in the context of working-class seizures of power in parts of Germany, and the creation of federations of workers’ and soldiers’ councils running not only factories but whole cities and regions, the Weimar Constitution was the product of compromise and accommodation between bourgeois liberal and socialist parties. But socialists had a great deal of sway; and socialist lawyers and statesmen, jurists and commentators played a pivotal role in drafting the Weimar Constitution, and in interpreting and elaborating it in the fraught decade ahead. Like much in German life, the Weimar Constitution was richly and systematically theorized and argued over.
This was intensely practical theorizing; these were socialist lawyers and jurists immersed in trying to build Germany’s first-ever democratic republic; and trying to make it also a social democracy and social republic. So, if we are interested in recovering something of the forgotten shape and insights of socialist constitutionalism, this is a good place to look.
But the way constitutional scholars write about the Weimar Constitution’s SER provisions today is wildly Whiggish and teleological. SER scholars use a stylized historical narrative in discussing the Weimar (and other early 20th century) SER provisions: a story of linear progress in which the present stands as a fully realized version of what the past knew in an immature stage of growth and development.
Thus, the fully realized, mature SER constitution is one with judicially enforceable rights to social goods like education, housing, and healthcare. And on this account, the SER provisions in constitutions like the Weimar Constitution are not rights but “directive principles” addressed to legislatures, which “did not establish actionable legal claims to welfare.” Thus, contemporary German jurists observe that the Weimar Constitution of 1919 was the first charter to provide that Germany was – what it is again today – a Social State or Social Rechsstaat with a body of Social Law. The Weimar Constitution included SER provisions, but “in spite of their inclusion in the constitutional text, social and economic rights were only …political statements of intent without legal effect.” Then, after World War II came the basic law of 1949, which long stood as the modern constitution of West Germany, and under it, the German constitutional court began to read judicially enforceable SER into the basic law’s human dignity principle.
In the same Whiggish spirit, students of comparative SER constitutions point to the more detailed and up-to-date SER provisions of late 20th century constitutions like South Africa’s, and have devoted countless books and articles to arraying all these regimes from Mexico and Weimar onward to the present in terms of where they fit in the stages of growth of SER – from directive principles to enforceable rights, underwritten by various weak and strong forms of judicial review.
In my next post, I’ll sketch some striking features of the Weimar Constitution, which cast doubt on the Whiggish approach. History is never so linear as we’re led to believe.
Willy Forbath is the Lloyd M. Bentsen Chair in Law and Associate Dean for Research at the University of Texas at Austin School of Law.