Conservatives in Europe and America keep fighting valiantly to protect and eventually expand the influence of their values. So far, alas, this has been a losing battle; socialists of all flavors have made great strides in recent decades not only to expand the reach of their ideology, but also to make it increasingly difficult for conservatives to fight back.
One of the obstacles in the way of conservative influence is the recent trend to write socialism into the constitutional foundations of Western countries. Once the founding document has been ideologically tainted—or tarnished—the scope shrinks where conservatives can have any meaningful influence.
It is time for conservatives to realize just how deviously the socialist side has moved the fence and redrawn the map. To be effective in re-establishing conservatism as the ideology of norm for Western countries, conservatives in Europe must be ready to undo the harm that socialists of all flavors—including those with a “democratic” prefix—have done at the constitutional level.
A constitution has a simple yet highly consequential purpose: to explain what a nation is and how it is supposed to be governed. The constitution is a bulwark against short-term whims, fashion trends in the political discourse, and of course revolutions or other forms of radical change.
The constitution does its job best when it stays true to its purpose as the guard of eternal national values. In our Western world, this means codifying the freedom of the individual, both intrinsically and from abuse of government powers; establishing an impartial judiciary; and making explicit the unabridged accountability of government to the people.
What a constitution cannot do, is to elevate so-called positive rights to the same level as negative rights. While negative rights protect the individual from abusive governments, positive rights are nothing more than entitlements. They give individuals “the right” to have specific needs provided for; when positive rights are written into a statute or a constitution, taxpayers become the providers. After all, simply declaring things like education or healthcare to be “inalienable rights” does not magically bring teachers or doctors into existence, let alone pay for them.
In a nutshell, negative rights are immunities from arbitrary government power, while positive rights remove that protection. To have any practical meaning, positive rights will often require the exercise of arbitrary power; it is in practice the only way that government can make a claim on the resources and the time of those who are selected to provide the entitlement. Therefore, entrenching such “rights” at a constitutional level is a danger to personal freedom.
Sadly, this is exactly what has happened in many European countries.
Since a positive right entitles one citizen to resources—be it cash or some in-kind service like children’s daycare—it also forces someone else to give up the resources needed to provide for that entitlement. It is this combination of enforced surrender of resources and the provision of the entitlement that mandates a larger government.
Almost by definition, this also means reining in our negative rights.
Herein we have an open ideological conflict. The idea that governments should protect and provide for positive rights is a socialist idea; the very core of the socialist ideology is the redistribution of income, consumption, and wealth between citizens.
There are plenty of examples of how these positive rights have received constitutional protection. In France, e.g., Article 6 of the Charter for the Environment explains:
Public policies shall promote sustainable development. To this end they shall reconcile the protection and enhancement of the environment with economic development and social progress.
The 1946 Preamble to the French constitution is more specific:
The Nation … shall guarantee to all, notably to children, mothers, and elderly workers, protection of their health, material security, rest, and leisure. All people who, by virtue of their age, physical or mental condition, or economic situation, are incapable of working, shall have the right to receive suitable means of existence from society.
How does the French government live up to this constitutional obligation, other than by means of an elaborate welfare state?
The Dutch constitution takes it up a notch. Its Article 19, Clause 1, makes clear that:
It shall be the concern of the authorities to promote the provision of sufficient employment.
It is followed by Article 20, where Clauses 1 and 2 declare:
It shall be the concern of the authorities to secure the means of subsistence of the population and to achieve the distribution of wealth.
Article 22 assigns the constitutional duty to government to “take steps to promote the health” of the people. Article 23 makes a lengthy case for transforming public education from merely one good idea among many into a constitutionally entrenched right.
The Swedish constitution is even more explicit. In the chapter on the “form of government,” the second clause of Article 2 explicitly assigns entitlements to citizens:
The personal, cultural and economic welfare of the individual shall be a fundamental goal of the public sector. In particular, the public sector shall secure the right to employment, housing, and education, as well as promote social care and security, and good conditions for health.
This article was written into the constitution in 1974. At that time, it reflected a four decades-long advancement of democratic socialism in Sweden. Interestingly, when the proposed new constitution came up for a vote in the parliament, 321 of the 350 members of the Riksdag voted for the reform. The socialist coalition, which at the time only consisted of two parties, the social democrats and the communists, had only 175 votes; a total of 154 members of parliament from the center-right opposition approved of the reform.
And so the socialist Clause 2 of Article 2 entered into the Swedish constitution.
Once a country gets to this point, the constitution obligates government to fund and operate a socialist welfare state. Therefore, one has to ask why non-socialist politicians tolerate, or even vote for, constitutional texts that force them, while in power, to be the stewards of democratic socialism.
A good part of the answer was provided by Swedish economist Gunnar Myrdal. In his book Beyond the Welfare State (Duckworth 1960), Myrdal explains (p. 27):
Income distribution has the form of a pyramid with a broad basis and a narrowing top. In a democracy with effective universal suffrage, this is one of the explanations why we are steadily proceeding in the direction of government control and direction. Even the conservative and liberal parties will have to become the vehicles for this development, or else disappear from the political scene.
In this 64-word paragraph, Myrdal provides an explosive explanation of why conservatism and classical liberalism have conceded space in European politics to socialists. Notably, the non-socialist segment of the European political spectrum has been on the ideological retreat since about 1960. In order to save themselves, they have adopted as their own the socialist welfare state. They did it not because it is consistent with their ideological principles, but because it is said that any opposition to it will be perceived as opposition to economic redistribution.
How is the conservative going to fight an idea that benefits the poor? (Here’s how.)
When the universal acceptance of economic redistribution had reached far enough, conservatives and liberals were ready to accept that its positive-rights functions be written into the constitution. The same universal acceptance also narrowed the spectrum of the public discourse where socialists and their adversaries actually disagreed. Social issues have gradually taken a more prominent role; more recently, they have been joined by rising nationalism as the foundation for an ideologically more confident conservative political movement.
Yet the welfare state remains absent from the public discourse.
The same shift in the discourse has happened in America, though without the welfare state being written into the constitution. The reason for this is likely the difficult process involved in amending the U.S. Constitution: the process consists of separate votes by Congress and by all 50 states; all in all, 101 legislative chambers have to vote an up or down, with two thirds of the states approving the amendment.
Despite not being constitutionally obligated to fund and operate the socialist welfare state, American conservatives have taken their ideological fight out of the economic sphere, and to some degree out of the legislative branch of government. Relying increasingly on the court system, they sometimes win important victories; meanwhile, the welfare state consumes about 70% of the federal government budget and more than half of state spending.
Interestingly, the political consensus around the American welfare state has not kept the radical Left from pushing for the idea. The latest contribution comes from Joseph Fishkin and William Forbath, two law professors (University of Texas at Austin and University of California at Los Angeles, respectively) whose advocacy for “constitutional political economy” resulted in a new book: The Anti-Oligarchy Constitution (Harvard 2022).
Their book is centered around two concepts: “constitutional political economy” and “democracy of opportunity.” The first concept refers to a strategy for policy making and litigation: to convince Congress to pass laws that codify entitlements, and to manipulate the judicial system so that conservative opponents do not get the chance to litigate against the entitlements.
One of their pet entitlements is “social insurance,” by which the government must guarantee our personal income. Their argument references a highly controversial program, known by its PPP acronym, which was designed during the recent pandemic to subsidize payroll for small businesses. Fishkin and Forbath see this program as some sort of role model, the implication being that Congress ought to create a full-scale, European-style “income security” program.
The two authors propose to give an expanded American welfare state de facto constitutional status in much the same way that abortions were, until the Supreme Court overturned Roe v. Wade. While Congress adds new entitlements to the current American welfare state, thus bringing the U.S. economy into the same realm of economic stagnation as Europe, Fishkin and Forbath propose an aggressive legal strategy to prevent conservatives from stopping the welfare state through the courts.
Fishkin and Forbath represent an Americanized version of the dual advancement of European welfare states: legislative action to create and expand entitlement programs combined with constitutional action to give said legislation the strongest back-up possible in a democracy. In other words, there is not much new added to the old story of how socialists have historically expanded their dominion within politics, public policy, and the economy.
What is new is the lack of analytical precision in their book; the Left, simply, is getting sloppy. This is sad for many reasons, especially since the Left has long been home to intellectual giants; aforementioned Swedish economist Gunnar Myrdal and his American colleague John Kenneth Galbraith come to mind; another prominent democratic socialist is Stuart Holland, a British economist, socialist, ideological practitioner, and Member of Parliament in the 1980s.
Fishkin and Forbath promise profusely to add value to the discussion of how the American Constitution is related to the expansion of the socialist welfare state. To their arsenal they count the supposedly powerful term “political economy,” yet they fail to understand the scholarly meaning of the term. Instead of using it properly, namely, to understand economic policy (understood broadly) in the context of political ideologies, they simply use the term for any kind of political reform that involves government spending or regulation of private businesses.
This badly blurs the lens through which they try to see the economy. They also gravely misunderstand the term “macroeconomics,” which they—at best—believe is the analysis of economic regulations and monetary policy. The concept of fiscal policy escapes them entirely.
Without delving into the rich fauna of analytical shortcomings in their book, let me instead place their book in the context of the constitutional anchoring of the welfare state. It plays two roles here, the first being its unabashed exhibition of how proponents of more so-called “democratic socialism” are ready to expand on the use of the constitution for the protection, i.e., enforcement of positive rights. This means continuing a decades-old tradition where Western countries, in this case America, subordinate their constitutions to one particular ideology: socialism with a democratic prefix.
The second role is to show that conservatives, should they so desire, will not have much of a problem standing up to socialists—democratic or not—who wish to ramp up constitutional and other legal means to force their ideology upon the rest of us. With the kind of scholarly carelessness that The Anti-Oligarchy Constitution represents, conservatives should have little problem winning the argument.
Sven R. Larson is a political economist and author. He received a Ph.D. in Economics from Roskilde University, Denmark. Originally from Sweden, he lives in America where for the past 16 years he has worked in politics and public policy. He has written several books, including Democracy or Socialism: The Fateful Question for America in 2024.