This post is part of our symposium on socialist constitutionalism.
Samuel Moyn –
Willy Forbath’s return to the Weimar Constitution is inspiring. I will just point out of a couple of limits to turning back to it in the present — limits that strike me as difficult to overcome. First, the Weimar Constitution’s nod to worker empowerment presupposed the structure of the (local and global) economy in 1919, now almost unimaginably different; second, it does not follow from the fact that progressive political economy is a priority that constitutionalizing socialist principles is too.
In the past generation, especially after September 11, the Weimar text was invoked principally as a cautionary lesson about what happens when emergency powers become devices for scuttling liberal democracy. As Forbath observes, there was a lot more to the Weimar constitution than that. It ought to be canonical for another reason, which is its commitment to worker empowerment, or even some version of “socialism.”
Forbath is right to challenge “Whiggish” histories that forget the desire for “big structural change” at a time of a massive mobilized working class, in a country with a socialist party, at a moment when a caesura in national history opened new possibilities. For sure, the Weimar Constitution was not the birth certificate of contemporary juristocracy, which finds its highest aspirational goal in celebrating the potential of judges to fulfill economic and social rights, or even to strike a blow for distributional equality. As Forbath says, notwithstanding important substantive moral goals constitutions can register, they succeed or fail as devices of the organization and use of power, including for ends not foreseen at the outset. And Weimar’s was promising because it was written with worker empowerment in mind.
We should, of course, put these features in the context of a unique historical moment. Meeting for twenty-three weeks in the famous town of German classicism, the delegates who ginned up the Weimar Constitution were anything but likeminded, and ironed out lots of compromises. Even so, the events of World War I in creating a new “corporatist” form of production and the revolutionary events of 1917-19 – in Germany itself as well as Russia – drove remarkable concessions. And these came not only from monied interests but from the socialist leaders of labor who were almost as afraid of the specter of worker empowerment as their traditional business enemies. (Recall that the constitution was written during the very period of the rise and fall of the Munich Räterepublik.) Not only did the results consecrate the right to organize and a suite of welfare rights, but — as Forbath mentions — Article 165 gestures vaguely to worker participation in enterprise.
Forbath is convincing that the Weimar Constitution is a good memento for leftists. The Weimar example shakes things up and reminds that there once was a progressive agenda in constitutional law that went beyond basic rights (including economic and social ones), important as they are. But one might worry that we will soon encounter some obvious problems that the Weimar Constitution didn’t solve, but that we now face.
Economics and democracy
Forbath concentrates on how the Weimar Constitution gives a place to worker empowerment, and is especially enthused that it reflected the possibility of economic democracy.
But because the postwar settlement did not devise a constitutionalism that allowed for reimagining production, exchange and distribution, the “empty phrases of Weimar” were filled only when circumstances allowed. And that was not often, even before Adolf Hitler’s very different workers’ movement came. Even in German history after World War II, worker participation in the economy—as in Federal Republic’s doctrine of Mitbestimmung or co-determination—is anything but a socialist outcome.
The relevance of the Weimar Constitution is therefore limited. One big reason is that the process of work is so different and differently organized now, having long since graduated beyond the industrial circumstances of 1919 into something very different. What could socialism mean, not under circumstances of industrial misery, but gig precarity and mass underemployment? Consumption, distribution, and exchange are also radically distinct, and their scale vastly exceeds what national governments are even empowered to control, in an age of central banks and trade agreements.
So our economic situation is such that the Weimar experiment provides a little but not a lot of guidance in establishing a progressive or socialist alternative. This isn’t to trivialize the Weimar Constitution. It is to say that it not clear what help old slogans like economic democracy and workers’ participation in particular afford now. Forbath emphasizes that it provided an alternative to state socialism of the familiar sort, which almost no one today advocates. Distributing power down is crucial, as Forbath holds. But it doesn’t take the place of imagining a legal order for national and global affairs linked to a theory of the desirable future of the economy.
We can also question, cautiously and respectfully, whether we should sign on to the contemporary project of constitutionalizing progressive political economy. As I have suggested, the Weimar Constitution did so only up to a point, albeit much further than many later examples. Forbath is thus correct that it is a great example not only for the canonization of economic democracy, but also for its canonization in a constitutional text.
Forbath doesn’t, however, explain why we need such a thing in the first place. Sure, it gives constitutional law professors a role in the elaboration of socialism. But maybe they need socialism a lot more than it needs them.
Aside from instituting democracy, as Forbath knows, no constitution can save progressive forces the trouble of winning. Where he sees consonance between the terms of economic democracy, one might reply that you get the economics you want only when you win within the modicum of democracy you have. Historically, constitutions mainly pose obstacles in the paths of progressives, rather than empowering them. It is not obvious that, if they clear those obstacles, progressives should want to deploy constitutions to their own ends.
The American situation makes this plain. There and elsewhere, a debate is looming about whether to pursue economic and other forms of progress as constitutional politics or just as politics. If the latter position wins, constitutional lawyers would have the job of getting their constitutions out of the way of political success. But that’s it. And if so, the relevance of Weimar changes. They would not seek, in the spirit of the Weimar Constitution, to use constitutional law to anticipate victories they haven’t yet won.
I sympathize with Forbath up to a point. Anyone who lived through the Cold War might conclude that the first order to business is to distinguish the idea of socialism from a critique of “bourgeois” legality as such, in order to deploy law to progressive ends. But this aspiration provides no support to a left constitutionalism, especially not to one that seeks to reclaim right-wing constraints on democratic mobilization as left-wing virtues.
Forbath plausibly implies that, after World War II, progressives have chosen the wrong tack of loading up their constitutions—in India and so many examples later—with wish lists. Instead, he suggests, they should use constitutions to empower themselves. But it is very unclear whether constitutions have a role in empowerment, compared to victories in forming the legislature and returning it to the policymaking centrality it still had for progressives in 1919.
In short, Forbath’s suspicion of wish lists might also undermine his own wish for constitutional empowerment of progressive forces, when it fact they need a political agenda in general, and a legislative one in particular. In a place like America, the main and sole task for constitutionalists will probably have to be simply getting the constitution out of the way.
Forbath’s intervention is thought-provoking. Calls to give content to the idea of socialism are definitely worthwhile, for as long as we are stuck with its conceptually obsolete nineteenth-century opposition with capitalism. The left needs a program, and talking about the meaning of socialism could help develop it. I also agree that constitutional law in general and comparative study in particular needs a purpose, beyond the central ones it has had in the last generation. Invoking the Weimar Constitution disrupts prior certainties on both counts. I am less sure it points back to the future.
Samuel Moyn is Henry R. Luce Professor of Jurisprudence at Yale Law School and Professor of History in the Yale Department of History.