This post is part of our symposium on socialist constitutionalism.
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.