The Constitution of Social Progress

The Constitution of Social Progress

This post is part of our symposium on socialist constitutionalism.

Blake Emerson–

Willy Forbath has drawn inspiration from the Weimar Republic to envision a socialist constitutionalism that would restructure the economy on a democratic basis. Sam Moyn has argued in response that the left ought to avoid constitutional law, which has usually posed an obstacle to progress, and instead focus directly on the political task of furthering material equality. As a scholar of administrative law, I’m sympathetic to the urge to keep constitutional law out of the way and make space for both democratic politics and practical know-how. But constitutionalism sits at the commanding heights of law. That framework of governing structures, rights, and ideals shouldn’t be abandoned to right-wing and liberal-centrist construction. Socialists and progressives instead ought to embrace a constitutional vision in which legislative and executive power give effect to the spirit of democratic equality that underlies but outruns the Constitution’s text.

The Weimar example Forbath invokes shares some common intellectual origins with the American Progressive tradition. As I show in The Public’s Law, Progressives like John Dewey, Mary Follett, and Frank Goodnow drew inspiration from earlier German constitutional models, in which an activist state would be governed by legislative norms, staffed by a professional bureaucracy, and ballasted by a corporatist organization of the economy. The Progressives sought to reconcile the German bureaucratic state with American popular sovereignty by creating highly participatory administrative processes. Regulatory agencies would empower trade unions, industrial associations, and consumers to help shape government policy.

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On Socializing the Constitution of Economic Coordination

On Socializing the Constitution of Economic Coordination

This post is part of our symposium on socialist constitutionalism.

Sanjukta Paul–

Professor Forbath’s essay, drawing from his research into the Weimar Constitution, urges us to reconsider what we mean both by socialism and by constitutionalism. He recovers and makes vivid a socialist vision that is neither about (simply or necessarily) “nationalizing” industry nor only about redistributing the material benefits of economic activity, but about creating participatory structures of decision-making across both the “public” and “private” spheres that empower workers and others who are currently largely excluded from it: in short, robust economic democracy. The essay also hints toward a broader sense of “constitutionalism,” encompassing not only the drafting and interpretation of public constitutions, but also the re-constitution of putatively private or semi-private associations like business corporations and labor unions. These two reorientations are connected by one of the grounding LPE principles: that law constitutes markets. Centering the constitutive power of law destabilizes the usual public/private distinction and enables a vision of socialism that incorporates transformative reforms to “private” entities—and that has room for localism and decentralization, where appropriate.

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Socialism Past and Future – or Socialism is Past, and the Future?

This post is part of our symposium on socialist constitutionalism.

Álvaro Santos –

socialist roseForbath’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,”

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The Relevance of Weimar

This post is part of our symposium on socialist constitutionalism.

Samuel Moyn –

socialist roseWilly 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.

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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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