This post is part of our symposium on socialist constitutionalism.
Álvaro Santos –
Forbath’s timely essay revisits the history of socialism in the hopes of informing a possible future. He calls our attention to the legal ideas and institutions that gave form to social democracy as a compromise between socialism with liberalism. Inspired by this past, Forbath calls for a political economy analysis of constitutionalism, which constitutional scholars seem to have traded for an obsession with separation of powers and federalism questions. When scholars do look at questions of welfare, they focus on the judicialization of social and economic rights. Moreover, he argues, these scholars tend to look at early 20th century social rights as the inchoate form of more robust and justiciable modern ones. Forbath defies this narrative persuasively and compels us to look at the ambition, vision and craft of the social jurists. In his telling, Weimar is not a cautionary tale but an opportunity for a do over. There’s much to like, and learn, from rekindling this vision of social democracy. In what follows, I invite other characters to this story, drawing from Mexico’s constitutional history, and raise a few questions about the limits of the social democratic bequest as a compass for our imagination.
A central point of the essay is the rejection of today’s institutional lenses to analyze the social democratic past. Forbath makes clear that those early constitutions of Weimar (and Mexico), as well as the new legal regimes and regulatory bodies they inaugurated, were not centered on courts. In fact, they were often suspicious of courts. Their agenda relied more on the agencies of the administrative state, its bureaucracy and expertise. Forbath is eager for us to replicate the social jurists’ ambition and their work of legal engineering.
I wonder, however, whether contemporary scholars’ court-centric vision of constitutional law limits their attention to questions of political economy. Constitutionalists may have a narrow field of vision because their work centers on whether issues are justiciable in the first place, so that those big old questions of distribution of power and authority between capital and labor, of institutional mechanisms for sorting out conflict and inducing cooperation, and of the mediating and managing role of the state in the economy, are rarely reached. It seems that from Forbath’s perspective, contemporary constitutional scholars wishing that social democracy was here may have exchanged “a walk on part in the war for a lead role in a cage,”
Forbath evokes Mexico as a positive example, whose 1917 constitution was the first to include labor rights in its text, two years ahead of Weimar. This is the source of enormous pride in Mexican history and helped shape the country’s nationalist narrative. The constitution came out of the 1910 revolution and incorporated many of its social demands. In addition to workers’ rights, it introduced agrarian reform and collective land ownership, as well as the state’s original ownership of natural resources. All of these legal innovations were a challenge to classical liberalism and its understanding of the public and private law domains, creating a third social sphere, while consolidating national sovereignty. They also challenged the liberal assumptions about the role of the state in the economy, giving it a leading role in conducting the economy to foster economic development. This was the constitutional framework under which Mexico industrialized and developed. The foundational narrative of the constitution boasts of originality, of something authentically Mexican in the creation of social rights, and of progressiveness.
As with any foundational myth, the reality is more complicated and perhaps less beautiful. Forbath calls our attention to the compromise from which socialist projects emerged. In Mexico the constitution was undoubtedly a powerful critique of nineteenth century liberal ideas but it was also a compromise. Pastor Rouaix, who chaired the Commission writing the workers’ rights’ section in the Constitution, described the compromise as a “fraternal amalgam of Jacobins and moderates, renovators and military men…united by…the flag of fatherland”. Lázaro Cárdenas, the president (1934-1940) who nationalized the oil industry and is probably most closely associated with the ideals of the revolution, described Mexico’s post-revolutionary phase as “a march toward Socialism”, and a “movement that equally sidetracks from the anachronistic norms of classic liberalism and from those of communism.”
In Mexico, the Constitution helped secure important reforms. The post-revolutionary regime created a national social security system for workers that included health insurance, housing, workplace accident and disability insurance, retirement, maternity leave and child-care. It played an important role in creating a middle class. The Constitution and labor legislation gave robust rights to workers, providing employment security and collective rights to form unions, strike, and bargain collectively. Union representatives sat alongside business and government in the tripartite Arbitration and Conciliation Boards in charge of settling labor disputes. Unions and employers negotiated industry-wide collective agreements that applied to whole industries or geographic regions. Union leaders also sat on the boards of public companies and became prominent and powerful in national politics.
But the compromise at the heart of the Constitution did not age well. Combative and independent labor groups were soon coopted by the revolutionary government in a corporatist alliance and used as political instruments. Those who resisted were repressed. Sadly, many of these collective rights became a grotesque simulation in the service of the corporatist alliance with the government and with employers. It is telling that for decades now independent unions, left-wing parties, scholars, and activists have proposed to dismantle many of the social institutions that were originally supposed to help workers. The compromise also provided the anchor for a decades-long political regime dominated by a one-party system, the Institutional Revolutionary Party (PRI). This regime became deeply authoritarian and the settlement was thus more “social” than “democratic”.
Given this history, I am not as confident as Forbath that we can elucidate a “core meaning” of socialism, and certainly not of social law. The social project seemed politically indeterminate, advanced by left-wing and right-wing movements alike in different countries. Forbath finds “serious democratic power-sharing” at its core, and that could well have been the Weimar case. But the social project also seemed to have had a democratic and a fascist strand, soon after visible in Germany and other European countries that were both decidedly illiberal and anti-communist. In Mexico, the settlement was socially progressive and corporatist. The emerging revolutionary party brought into the political fold sectors that were previously excluded from power-sharing and political participation, including farmers, workers, employers and the popular sector. It also served to ensure peaceful periodic changes of political power. But the regime was decidedly authoritarian and decisions of political economy, whether at the firm, industry or government level were not democratic. I share the democratic aspirations Forbath attributes to socialism but my sense is that, even within socialism, they will have to be fought for rather than expected.
What would it mean to stand for the ideals of socialism or social democracy today? What form, constitutional or otherwise could they take? It is striking how often the answer revolves around the same old institutions of the welfare state. In the Eighteenth Brumaire, Marx warned that: “At the very time when men appear engaged in revolutionizing things and themselves…they anxiously conjure up into their service the spirits of the past, assume their names…their costumes to enact a new historic scene in such time-honored disguise and with such borrowed language”. More recently, in The Left Alternative, Roberto Unger warned against the fetishism of social democracy and described it as having been “formed by a retreat…from the attempt to reorganize both production and politics”. Social democracy, he argued, settled for the humanization of both domains using compensatory redistribution of income to equip people against economic insecurity. Unger calls for something Forbath seems to be equally interested in: “the democratization of the market, the deepening of democracy, and the empowerment of the individual.” The trouble is that, as Unger suggests, we might not find it in the model of social democracy we are used to admiring.
As the neoliberal economic model continues to collapse, the appeal of social democracy is undeniable. But we should be wary of letting the nostalgia for that lost paradise cloud our vision for its downsides and limitations. And we should open the vast canvas of imagination to paint the future of our institutional, and constitutional, arrangements. Forbath challenges us to remember and to rekindle the egalitarian and democratic aspirations of social democracy in the service of a constitutional political economy. He casts light on the role that law, and the ingenuity of social jurists played, in thinking through fundamental questions of the polity and the market and in offering innovative solutions. We should revisit those aspirations the better to surpass the familiar institutional arrangements on offer. In these uncertain times, when many of the existing institutions seem to be shaking, we should take up Forbath’s challenge.
Álvaro Santos is Professor of Law and Faculty Director of the Center for the Advancement of the Rule of Law in the Americas (CAROLA) at Georgetown Law.