This post is part of our symposium on socialist constitutionalism. The Federalist Society leverages right-wing legal change by promoting constitutional originalism as a seemingly noble and neutral foundation for neoliberal political economy. Without a comparably accessible and compelling contrary first principle, left and centrist law and politics can appear to be a diffuse agenda of contested…
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.
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.
In Forbath’s 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.
Willy 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.
In 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.
Socialism 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.