Weimar Moments IV: The Past and Future of Transformative Constitutionalism

Several distinct social and political sectors were represented in the constituent process leading to the Portuguese Constitution, resulting in a negotiated text that tried to balance conflicting interests, establishing a specific and coherent equilibrium between majority and minorities in the different areas of collective life. From that balance, a few original constitutional features emerged - they constitute the backbone of national constitutional identity: a ‘mixed‘ form of government with a dominant parliament, a very strong fundamental rights catalogue, including many social and economic rights, a central place given to work and worker‘s rights. The European integration process and the last decades‘ political and social changes pose some challenges to national constitutions and the Portuguese is not an exception. My paper will reflect upon the path to balance between past and present, openness and the safeguarding of national fundamental consensus.

There are at least two potential Weimar Moments in Polish constitutional history. The constitution of 1921 faced the particular task of rebuilding a nation. For that purpose, it featured a strong parliamentary component. However, it lasted only for five years before constitutions with greater presidential powers replaced it. The 1990s brought the desire to regain independence and democracy while keeping and expanding social equality. Transformative constitution of the 1997. Sought international ascertainment in European integration. However, this desire, together with financial vulnerability, exposed it to the influence of neoliberal constitutionalism, leading to insoluble contradictions. The paper will analyse to what extent the current constitutional crisis in Poland has been framed by them.

As interest in transformative constitutionalism rises around the world, it is falling in South Africa. A more global account of the concept is overdue, and not only to rejuvenate what have become very inward-looking South African debates. The biggest (if not very surprising) lesson of those debates is the extent to which economic issues are decisive in transformative constitutionalism‘s success or failure. The concept‘s marriage of constitutional and economic issues is far from the whole of its content, but it is the key to its legitimacy. To state this is to see the inescapable relevance of global and historical debates on these issues that predate by more than a century the invention of the label ‘transformative constitutionalism‘ in 1998. Starting from a body of more recent South African scholarship that is little read globally, this paper develops these claims.

The social dimension of the Weimar constitution was hailed by its contemporaries as one of its most innovative aspects. Even after its failure, world constitutionalism was still ready to see in it its most lasting contribution (even if post-1945 Germany went another way). However, when constitutional theory renewed the question about transformative constitutionalism, in the light of the new constitutions of the 1990s, and then, more radically in the 2000s, the Weimar model was considered outdated, both constitutionally (by the new role of the constitutional judge) and politically (by the crisis of the industrial society). After a return to the moments of the growth of social constitutionalism, we would like to defend the topicality of the Weimar device for a transformative constitutionalism, in particular by a comparison with the models of normative constitutions under Welfare State in Europe as those of advanced forms of populism in post-colonial countries.