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,”