This is the second of two introductory posts in our symposium on socialist constitutionalism.
Willy Forbath –
In my last post, I began a discussion of the Weimar Constitution as one of the first constitutions containing provisions for social and economic rights (SER), and perhaps the very first one, in which socialists had an important hand drafting and expounding. The literature on constitutional SER misses a great deal when it casts the Weimar Constitution as a weak, infant version of later SER constitutions, which grew stronger over time.
Recently, I have been looking at the Weimar Constitution and the writings of the drafters of and commentators on its social law provisions. The social law portions of the Weimar Constitution are not a baby version of the grown-up post-World War II welfare rights constitution. The social law provisions of the Weimar Constitution included rights, but they were chiefly about structures and powers. They outlined an interlocking framework of rights, structures and powers that aimed to empower workers and other lower class and subordinate groups to participate on an increasingly equal footing in running individual firms and in shaping and governing the broader political economy. The constitutional vehicles here were both trade unions and also a federated structure of democratically constituted workers’ councils at local, regional and national levels of economic governance. Workers in Bavaria and elsewhere waged bitter general strikes demanding that councils find a place in the Constitution; and they succeeded.
You might expect that a socialist constitutional scheme would construct all these institutions as creatures of the state. Not so. The basic law instead did something shrewder, more interesting and more classically liberal. It made the councils out of public law but the unions from private law. The leading draftsmen were radical democratic socialists, including a few labor lawyers who understood in their bones the perils of state-dominated labor unions. Thus, as one observed, the Article of the Constitution setting out workers’ collective right of association to form unions casts unions as “autonomous self-help associations organized under private law, and secured against state domination.”
Workers’ councils, on the other hand, are constitutionally cast as creatures of public law, and the Weimar Constitution provides for elections to local workers’ council and authorizes the latter to choose representatives on regional and national councils. The councils, in turn, are empowered to participate “on equal terms in community with employers’ associations” and others in the open-ended “tasks of economic development,” and in the “implementation of laws concerning the socialization of industry.”
What about the “socialization” of factories and firms? Wasn’t this a species of state socialism? It could be, which prompted the Austrian socialist jurist and prime minister Karl Renner to underscore that under the Weimar Constitution and its imagined Austrian counterpart “[s]ocialization does not mean mere state-ization or nationalization.” Socialization entailed “the transfer of enterprises to the control of councils of consumers and producers, at least to some significant extent.” (Renner at 192). Indeed, as another leading jurisprude, Franz Neumann, pointed out, ownership could remain “private.” He well understood the divisibility of property rights among different actors and institutions, just as these socialists generally understood the desirability of myriad forms of ownership for different sorts of firms and industries. The important thing was to tilt the legal order toward gaining workers a real part in running the everyday life of the workplace and firm, and workers and consumers councils a widening democratic role in the economy.
The Weimar Constitution also included guarantees of housing and social insurance to shield vulnerable citizens from poverty and desperate want; but it did not stop there. Its social law was a framework for empowering ordinary people to demand and shape for themselves, in their workaday lives, modes of power-sharing along with decent conditions and livelihoods. At the same time, it outlined a broader institutional order that aimed to empower them to participate fully in the larger decisions about the nation’s political economy so as to put it on a path of development that sustains and builds up such livelihoods and power-sharing, over time.
I hope that I have sketched just enough to show you why it is misleading to depict the Weimar Constitution’s social provisions as a baby version of the SER constitutionalism of today. It was something different. Today’s social constitutionalism aims to put a constitutional floor under the welfare state. The Weimar Constitution aimed to provide a framework for building democratic socialism. So did the constitutional outlook of early twentieth-century socialist lawyers and jurists in the U.S., in Austria-Hungary, and everywhere else I’ve spent some time looking.
True, as the standard learning tells us, the social and economic rights of this generation of constitutions were not crafted for judicial elaboration and enforcement. Like American socialists, progressives and New Dealers, the drafters and defenders of the Weimar Constitution saw the courts as foes and assigned the work of elaborating and safeguarding the social features of the constitutional order to other actors. The most useful thing the courts could do is stay out of the way.
One of the most creative things about the Weimar generation of socialist jurisprudes is that they put aside the orthodox Marxist view of liberalism and the rule of law. That view treated the liberal constitution – secure legal rights, parliamentary government, separation of powers – as great historical achievements of the bourgeois revolutions. A major step forward. But the bourgeois constitution and the bourgeois republic, at their best, vouchsafed legal and political equality. And that kind of equality was a snare and illusion, when it came to real human emancipation. At the end of the day, the liberal constitution and the bourgeois republic were safeguards of capitalism that a fully realized socialism would upend.
There were two problems with this outlook. First, it held that “after the revolution,” there would be no more need for a formal political sphere of parliamentary government, secure legal rights and the rule of law. Communists and democratic socialists split apart, because the latter believed these liberal achievements were indispensable. No socialism worth wanting could do without them. The other problem was that the bourgeoisie was not doing the work orthodox Marxism assigned it. For the first time in its history, Germany was establishing something like a genuine republican form of government and a genuine liberal constitution – and the business elite, the grand bourgeois, was not defending them. Quite the contrary, key industrialists and financiers were happy to play ball with the authoritarians and fascists who wanted to blow up liberal democracy.
For their part, the socialist jurisprudes thought it was a good time to question the orthodox Marxist notion that defending all these supposedly bourgeois institutions was the task of the bourgeoisie. Perhaps instead it was the task of workers and the socialist parties to which much of Germany’s industrial working class rallied. They hoped that wedding liberal democratic institutions to democratic socialist ones would provide a more durable framework for the rule of law. They were defeated, and a regression into barbarism followed.
Happily, this is not Weimar. But looking out at the rise of authoritarians and proto-fascists trashing liberal democracy and trumpeting ethno-racial nationalism, we may not want to bank on today’s capitalist elites keeping our world safe from its own regression into barbarism. We could do worse than revisit and perhaps even rekindle the democratic socialist constitutional imagination and its unorthodox efforts to empower ordinary working people.
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.