Weimar Moments III: The Past and Future of Transformative Constitutionalism

The 1917 Mexican constitution is considered as an iconic constitutional transformation worldwide. It was born from revolutionary times and inaugurates an institutional design that paid attention to “the social question“ and democracy. The constitution has two main characteristics. On the one hand, it was the first constitution in the world to recognize social rights, and it did so within a hyper-presidential structure. This combination became a canonical model for Latin American constitutionalism until today. On the other hand, the rigid formula of a “permanent constituent power“ has allowed more than 700 amendments. Those reforms have blurred the constitutional identity. I will assess the current narrative of the Mexican government to think whether it means a commitment to constitutionalizing mass democracy and to transformative constitutionalism, or it is a return to authoritarian constitutionalism. Both alternatives can be compared with developments of the Weimar constitution.

This paper explores the various efforts to translate foreign constitutions in Republican China, from the proclamation of the Republic in 1912 up to the Provisional Constitution of 1931. The Republic‘s translation activity expanded the translation enterprise undertaken in the late Qing Empire, translating constitutional texts from most parts of the world. Although many of these translations were mediated through European or North American publications, they show the global outlook of Chinese constitutionalists. The translations also demonstrate the shifting international referents used for China‘s own constitution-making projects. The unfavourable outcome of the Versailles Treaty for China, led to a disillusionment with the West, and a renewed interest for the Russian/Soviet and German constitutional experiences. Against this background, the Weimar Constitution emerged as a reference for constitutionalists who did not want to associate either with communism or with Western liberalism.

Latin American Social Constitutionalism started at the beginning of the 20th century with the 1917 Mexican Constitution. As opposed to the Weimar Constitution, most of the Latin American new or reformed constitutions understand social rights not only as programmatic principles, but as direct, legally enforceable access to services. While many reformed constitutions follow the “German“ concept of Social State, they assign a central role to social rights as a requirement for a life in dignity. Τhere are doubts as to whether social rights exist in a subjective sense following from the discrepancy in many Latin American countries between the endeavour to achieve a life in dignity and the resources available to large parts of the population. Although the Mexican Constitution of 1917 and the Weimar Constitution of 1919 can be considered revolutionary because of their commitment to social rights, in this article we will address the neutrality of the text and the missing gender equality.

The paper discusses the Japanese constitutional drafting process of 1945-1946 as a half-failed Weimar moment. When analysing the constitutional drafting process, it emerges that dozens of drafts proposed by scholars, associations and political parties, as well as the official draft prepared by the Rights and Freedoms Committee were full of Weimar borrowings, some articles being literal translations, other mediated through the New Deal experience and the Soviet and Scandinavian constitutions. The final draft kept just some of these Weimar provisions and furthermore, these provisions were then rephrased into a more Japanese style. Even though the Weimar connotation of both the original Committee‘s draft and of the private drafts had been softened, its influence still stood and contributed to introduce within the Japanese legal system if not a fully-fledged welfare state, at least the concepts of positive rights, which the courts would have further developed in the coming decades.

The Greek military defeat in Minor Asia (1922) had both political and institutional consequences. In 1924, the Liberals dictated the abolishment of monarchy and the establishment of the Second Greek Republic. Following the example of Weimar, the new democratic regime pursued the consolidation of political democracy and the development of a welfare state. A new Constitution was voted in 1927 which not only enshrined the parliamentary system, but it also established a second chamber, partially influenced by the German “Reichswirtschaftsrat“. Furthermore, it contained several social rights. After the outburst of the financial crisis, the Weimar state of exception inspired the Greek political staff. The Prime Minister proposed the adoption of a constitutional norm which would be similar to the article 48 of the Weimar Constitution. However, this reform was never concluded, since the Liberals lost the elections of 1932.