«Cuba’s 1940 Constitution: A Reinterpretation. Julio Cesar Guanche 1 Two keys for the interpretation of Cuba’s 1940 Constitution have been so ...»
Cuba’s 1940 Constitution: A Reinterpretation.
Julio Cesar Guanche 1
Two keys for the interpretation of Cuba’s 1940 Constitution have been so dominant that
they have become standard: On one hand the 1940 Constitution is taken for the greatest
consensus-building process of the Cuban republic and, on the other hand, its failure is attributed
to the absence of accessory legislation which left the Constitution with little normative reach. In
this piece, I will offer a rereading of the second key. To do so, I review the debates over the mortgage moratorium and racial discrimination. It is my hypothesis that the solutions found for both problems in 1940 – in the former case by deferring the moratorium in favor of those whose debts were outstanding for more than twenty years and in the second by constitutionally establishing criminal sanction for racial discrimination – offered answers for issues that remain crucial in the here and now. Likewise, there were good reasons for high expectations regarding the future normative order created by the1940 Constitution. It consecrated a social criterion for democracy and a sense of nationhood that was inclusive and sensitive to “the people.” This piece does not address the causes of the 1940 Constitution’s “failure” – which could be the subject for another study – but it does seek to nuance the discourse about its general ineffectiveness.
Eliminating the mortgage moratorium It is ironic that “Cuba’s number one problem,” the matter that comprised, in 1939, the “soul of the Constituent Assembly,” has not been taken up in order to judge the effectiveness of 1 Julio Cesar Guanche Zaldivar (Havana, 1974) has been a professor at the University of Havana and directed several national publications and publishing houses. He worked for several years for the International Festival of New Latin American Cinema. He has published prologues and chapters in more than 20 volumes. He is the author of The Imagination against the Norm: Eight Points about the 1902 Republic, On the Edge of Everything: The Present and Future of the Revolution in Cuba, The Continent of the Possible: An Examination of the Revolutionary Condition, The Truth is not Rehearsed, Cuba: Socialism and Democracy, Liberty as Destiny: Values, Projects, and Tradition in 20th Century Cuba, and the compilations Mella: Rebel Lives and The Sacred Right to Heresy: The Idea of Cuban Socialism in the Work of Raul Roa Garcia. Guanche is currently completing a PhD in history at FLACSO- Ecuador.
Guanche the 1940 Constitution. I am referring to the “Great Problem” of mortgage debt. When, in October 1939, President Laredo Bru vetoed a liquidation bill, even though its critics noted that the bill favored creditors, that veto was debated in Congress up until the eve of the Constituent Assembly, which took the matter into its own hands, considering it “the most important discussion of this Convention,” “a question of honor for and on behalf of the Cuban people” (Diario de Sesiones de la Convencion Constituyente 1940c).
The problem of the moratorium can be summarized as follows: The effects of the Great Depression, crisis in the sugar industry, the sudden increase in the prices of products of basic need, the low value of the currency, cash shortages, the lack of public credit institutions, foreign ownership of the banks, and the lack of an efficacious bankruptcy system combined to make it impossible for people to make their mortgage payments. Thousands of properties were auctioned off for next to nothing. Consider two examples: A building containing 24 apartments in the Vedado district owned by a certain E. Montoulieu assessed at a value of 200,000 pesos was auctioned to a E. Sarra in 1932 for 5000 pesos (Asociacion Nacional de Propietarios 1939a, p.
40). In 1927, one Marcial Facio borrowed 30,000 pesos from Chase National Bank, giving as collateral a certificate for 30% of the net value of the Bahia Honda Sugar Company, whose total value was estimated at 400,000 pesos. In the loan contract the agreed valuation in case of auction was 100,000 pesos. In 1929 the bank foreclosed on the property and auctioned it off for 2000 pesos (Asociacion Nacional de Propietarios 1939a, p. 38).
Solutions for this problem existed within private law, through the civil code itself or the concept of rebus sic stantibus. According to the latter, when, due to force majeure, the conditions that give rise to an agreement drastically change, making the agreed terms disproportionately burdensome for one of the parties given the new extraordinary and
unforeseeable circumstances, the doctrine permits the modification or even annulment of the contract (Goldenberg, 1977). Herein lay the first face of the dilemma: whether to solve the problem by appealing to the civil law, thus recognizing the legitimacy of the contracts while granting an exceptional “civil” way out or to treat the problem from an economic rights perspective to justify, in contrast, a “public” rule to resolve the matter. The problem is that each of these avenues out of the dilemma led to a very different destination.
For those who defended the moratorium, it was of utter importance to avoid the “peace brought by tombstones.” For them, absent the moratorium, Cuba would be a “cemetery of debtors” (Asociacion Credito Territorial, 4 October 1939). An estimated 200,000 families in a population of 4 million were affected by the mortgage crisis. The defenders of the lenders argued that liquidating the moratorium and accepting its retroactive application to private contracts would lead to the collapse of credit, the end of private property and the capitalist system, and the bankruptcy of the Cuban economy. 2 Defenders of the “public” solution to the moratorium problem were engaged in many crucial political battles leading up to 1940: to ensure that the Constituent Assembly would actually occur; to challenge liberal economic policies; to legitimate state intervention in the economy; to adjudicate the costs of social rights; to advance a conception of the state as “creator” or rights; and to redefine who constituted the “people” and what constituted “democracy.” 2 Raúl de Cárdenas, presidente de la Asociación Nacional Pro-Restauración del Crédito Cubano, se expresaba en estos términos: “El asunto de la reevaluación tiene un interés tan excepcional que el problema de la constitucionalidad [del proyecto de ley de liquidatoria] resulta secundario. El aspecto primordial es el del quebranto inmenso que han de sufrir los intereses públicos con la desaparición del crédito.”(…) “Y a eso vamos nosotros: si se aprueba la ley, el país entero experimentará la sensación de estar en un estado de disolución.” (Asociación Nacional Pro-Restauración del Crédito Cubano 1939, p. 7) Raúl de Cárdenas se presentó como candidato a la Constituyente de 1940 (no resultó electo), por el partido Demócrata Republicano, con un lema que recogía el núcleo de esta campaña: “El principio fundamental para recuperar el crédito es la irretroactividad de las leyes civiles que nazcan de
Towards the end of the 1930s, holding a “sovereign” Constituent Assembly faced several barriers: Article 115 of the 1935 Constitutional Law, the need for political amnesty, and the university problem. Once these obstacles were overcome, the liquidation of the mortgage moratorium became “the” problem. The key to solving it involved avoiding the “paradox of a national convention without a nation” (Asociacion Nacional Pro-Deudores, 25 October 1939).
This camp felt that going to the Constituent Assembly without having liquidated the moratorium was the equivalent of going in order to pronounce to the people “the panegyric of its misfortune.” The resulting text would be no more than a report on the loss of Cuban property, land, employment, and business. The usurers would have won the “great battle” over the justice fought for in the 1930 revolution. 3 Those in favor of the moratorium felt that economic liberalism was the main cause of the disaster. They questioned the “sanctity” of the contracts and the imposition of property rights over the right to life (the slogan of the National Building Owners’ Association was “life comes first”). The predominance of liberal notions, according to their critics, made it impossible to chart a course towards “humane capitalism.” The pro-debtor defense, within the general framework of rejecting unlimited property rights and calling for greater state intervention in the economy, represented an ambition to reestablish Cuban capitalism on new bases.
The Keynesian demand for “euthanasia of the rentier” took the form in Cuba of a critique of the “parasitic” mortgage lender which heralded “productive capitalism” considered capable of politically controlling speculative financial capitalism. This idea was expressed in the following way: “There are two types of capital. There is capital and enters the fray and there is capital that remains static. Active capital circulates through audacious, creative investments that lead to, 3 North American ownership of some of the lending banks meant that FDR’s government was also an actor in this
without doubt, national wealth and public prosperity. Static capital limits itself to risk avoidance and a solid return through conservative, somber investments, which commonly translates to general impoverishment and real estate markets cornered by a handful of usurious capitalists” (“Editorial,” 1936b, pp. 17, 45). The model for “productive capitalism” held, for its part, promise for higher employment and for a type of capitalism more easily reformed.
Small debtors, industrial tycoons, and large landowners converged on this point, including J.M. Casanova and the Revolutionary Communist Union Coalition. For the latter, which was immersed in a strategy for greater engagement with different social groups as well as greater electoral competiveness, defeating the moratorium would open the path for rejecting “laws of direct taxes and for erecting an impassable wall protecting the laws for the people so
energetically sought by the masses.” This is why “following the moratorium come [not only]:
constituent assembly, a path to national recovery, improvement of the people, defeat of foreign exploiters, a sovereign homeland” (Opiniones de hoy, 17 October 1939), but also advances for the “managed economy” which at the time already regulated the sugar and coffee industries and was starting to regulate that of tobacco, fixing the prices of raw materials, establishing minimum wages, and intervening in every productive economy of the State in an effort to diversify economic activity from a perspective that saw the state as an actor in the program and demanding of it the creation of instruments such as a national banking system. From this perspective, the State was not merely “empowered” but rather was “obliged” to “develop” the nation. “That archaic concept of the State as mere tax collector whose function is merely gathering funds in the Treasury is no longer in force anywhere. The State is a scientific regulator of the public economy and its mission is to protect and stimulate the basic agriculture and industries of the country through just and far-sighted laws” (Jose Cambeyro, 1936).
During this process, various sectors came to self-identify as “the people,” going beyond the typical paternalistic discourse (the “humble” rejected that label; they were “men,” organized and exigent, not “the meek” dispossessed of the capacity to fight) (“We do not see the motives behind the veto in the veto itself,” 26 October 1939). A vast poli-classist spectrum saw itself as a single moral and political subject: the “debtors” and the “workers.” Laborers, bureaucrats, middle management, the middle classes and large landowners all perceived the problem facing the country as a single issue that affected all the classes horizontally. 4 Unlike “vertical” integration – within a single social zone, for example, the bond represented by the salary that links workers to patrons – this horizontal experience was key for the political constitution of the country. The conflict that creditors attempted to portray as a fight “between capitalists” was reinterpreted by the debtors as “the problem of the Cuban people.” “We are the 99%” has been repeated ever since. “My words,” Jose Antonio Echeverria would say on behalf of the Pro-Mortgage Preemption Committee (during a public hearing in the Senate on the moratorium), “are simply a brief, benevolent expression of the feelings and sentiment of 99% of the population” (National Building Owners’ Association, 1939b). The trope comes up again and again: “The National Building Owners’ Association, respected by all provincial and municipal councils, which represents Cuba’s middle class, with all of its friends who are the rest of the Cuban workers, that, the whole people, with the sole exception of those directly implicated” (National Building Owners’ Association, 1939b, p. 43).
This discourse was produced within a symbolic complex that can be accurately qualified as “populist” 5: polarization between “people” and “oligarchy” – represented by the “Sarra’s, the 4 Ver este enfoque en (Thompson 1979:31).
5 The author’s definition of Latin American populism: 1) structural factors – centralized economy, bureaucratizing administration, urbanizing the country; 2) cultural dimensions – relaunching ‘nationalism’ as a legitimate project,