Socialism Past and Future (Part II of II)

This is the second of two introductory posts in our symposium on socialist constitutionalism.

Willy Forbath –

socialist roseIn 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.

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Socialism Past and Future (Part I of II)

This is the first of two introductory posts in our symposium on socialist constitutionalism

Willy Forbath –

socialist roseSocialism 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.

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A Political Economy the Constitution Requires

Join us this week for a series on the political economy of labor & the constitution. 

Willy Forbath –

Arizona Teachers Go On Strike And March To State Capitol

(via Jacobin)

“Political economy” has an antique ring. More than a century ago, the field of “political economy” began to give way to what was called “economics.” By the mid-twentieth century, political economy was forgotten; economics ruled the roost. But what is old is new again. Political economy is coming back. Economics sidelines the distribution of wealth and power; political economy puts it at the center. Economics claims to be value-free; political economy asks: “What is the good economy?”

Because it blends the normative with the analytical and the economic with the political, political economy always has lent itself to constitutional discussion. And when you go back to the eighteenth , nineteenth and early twentieth centuries, you find that judges, lawmakers, reformers, advocates, constitution-makers and policy-makers of all stripes looked at and argued about the Constitution through a political economy lens and the political economy through a constitutional lens.

They started from the premise that the Constitution was inevitably entwined with – and not neutral with respect to – the economic order. Thus, many matters that we see as policy debates about the maintenance or reform of institutions affecting the distribution of wealth and economic power they saw as the stuff of constitutional law and politics.

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Three Views of Constitutional Political Economy

Constitutional Political Economy – What Is It Good For? – On the Labor Scene, Part III of III


William Forbath –

To recap, what constitutional political economy is good for on the labor scene is three-fold:

  1. as a movement discourse that provides moral and political legitimacy to acts of civil disobedience and law-breaking – and lends reform-minded publics and law-makers a keen sense of the stakes for our deeply eroded democracy in enacting reforms that encode a pro-labor constitutional outlook;
  2. as a source of robust accounts of substantive constitutional principles to put on the scales when defending such reforms against neo-liberal constitutional attack;
  3. and, finally, as a framework for labor movement activists, lawyers and policy-mavens to compare and argue about the practical and normative considerations favoring rival constitutional constructions for the future.

Let me close this series with the briefest of sketches of two emerging views of the way forward, with a focus on how they’re interestingly at odds on constitutional grounds.

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Janus in Appalachia

Constitutional Political Economy – What Is It Good For? – On the Labor Scene, Part II of III


William Forbath – 

Unlike the workers’ organizations in Kate’s study, just about everything the striking teachers did in West Virginia and Kentucky fell outside the bounds of legality – the strikes themselves, the efforts to “bargain” over not only teachers’ pay but also the states’ miserly education budgets and unjust tax codes, even the stab at collective bargaining itself. It may have been because their demands were broad-based and popular that the striking teachers suffered no legal sanctions and state repression along the way. But not every collective action on the part of hard-hit public employees in red states (or the federal government) is likely to be so lucky. As the anti-strike injunctions and arrests roll out, labor constitutionalism will beckon.

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The Labor Movement Never Forgets?

Constitutional Political Economy – What Is It Good For? – On the Labor Scene, Part I of III


William Forbath – 

Is it really a good idea for liberals and the left to be making constitutional arguments against economic inequality? Give it a rest! Take a break from constitutionalizing everything.  And don’t talk about “taking the Constitution away from the courts.” The Constitution always leads to the courts, and the courts are not our friends, certainly not when it comes to fighting economic inequality.

That, in a nutshell, is one reaction to articles and a book-in-progress by Joey Fishkin and me, about what we call The Anti-Oligarchy Constitution. There’s something to be said for this reaction, and I’ll spell it out in a moment. But in the end, I think the arguments in favor of attacking economic inequality by pushing a left-liberal “constitutional political economy” outweigh the arguments against it.

In a nutshell, the arguments in favor of the notion come down to this.  It’s not easy to unpack why the stakes in combatting gross economic inequality are not only about fairness and distributive justice, but also about political freedom and democracy. Constitutional discourse can make that point sharp and resonant. Historically, in the U.S., constitutional-political-economic discourse was crucial to making the case for the proposition: No political democracy without social and economic democracy. It’s time to reinvent that discourse.

I’m going to use labor law as my main setting here. Labor law is the terrain on which Kate Andrias has written a great, sustained critique of Joey’s and my work, in the “Give it a rest!” vein. Responding to Kate’s critique seems a good way to test our views.

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