“Adaptability” as a constitutional norm (and problem): Reflections on a Skowronekian Constitution

Sandy Levinson

For the Balkinization symposium on Stephen Skowronek, The Adaptability Paradox: Political Inclusion and Constitutional Resilience (University of Chicago Press, 2025).

There is much that one can say about Stephen Skowronek’s important new book, which I read in manuscript and immediately began assigning, in part, to courses I taught on reforming the United States Constitution at the Harvard Law School.  One of its many virtues is its accessibility to all potential audiences.  It deserves a wide readership and, more to the point, discussion.  What I want to do here is to focus very closely on the title of the book:  The Adaptability Paradox:  Political Inclusion and Constituitonal Resilience.  The “paradox” he points to suggests some very disturbing features of American constitutionalism from its outset to the present day.

It is becoming ever more clear that the United States, at its founding moment(s), whether 1619, 1776, 1787, or even 1868, could hardly be described as a “democracy” under even capacious 21^st century notions of that term.  The United States is well described as a “herrenvolk democracy” for much of our history.  As Mark Graber has demonstrated in a forthcoming essay addressing the “democratic decline” within the United States, one should recognize that most of American history features attempts by ruling elites to resist the democratic impulse, save perhaps those linked with white males.  So the present “democratic decline” should be dated from 1970 or so, when, for the first time in our history, one might plausibly describe the United States as a “democracy.”  And much of American domestic politics should be understood as the bitter conflict between those who applauded the developments of the 1960s and those determined to resist them and, if possible, roll them back.

With regard to “inclusion,” begin only with the notion of “universal” suffrage and the degree to which that requires accepting the “adaptability” it signifies .  Even if one recognizes that no rational person would support truly “universal” suffrage—think only of five-year-olds!—the notion is now a “term of art” referring to the absence of restrictions based on race, gender, religion, and class.  (Age, as already noted, is something else.)  All, of course, were present in 18^th century America and some survived well into the 20^th century.  Akhil Reed Amar may be correct that the elections for delegates to the state ratifying conventions in 1787-88 were the most “democratic” in world history up to that point, but that only underscores the relative recency in world history of the concept of “government by the people” (as distinguished, say, from “government for the people, itself also a break from earlier notions of class rule).  “Government” in 1787 America was clearly limited to rule by white men, almost all of them, practically speaking, Protestant and propertied.  Eighty years later, the Congress that proposed the 15^th Amendment rejected a proposal that the ban on racial limitations be extended to the ability to serve in office; it was a hard sell for many even to agree to suspending that bar for the basic right to vote.  And, of course, in too many ways the Amendment simply became what Madison had earlier called a “parchment barrier,” to be breached by “legal” mechanisms like poll taxes or literacy tests, as well as overt intimidation and violence.  Only with the passage of the now-being-gutted Voting Rights Act of 1965 did “universal suffrage” with regard to race become even close to an actuality in the United States.  We should also remember that many female suffragists opposed both the Fourteenth and Fifteenth Amendments because their proponents (and the texts) simply disregarded the fact of women’s being excluded from participation in their own governance.  That came along only in 1920. 

                Moreover, whatever the remarkable diversity of American life even from the beginning, however dated, it has only increased in my own lifetime.  I was born in 194 under the continuing regime of the 1924 immigration act that functionally prevented few other than Northern Europeans from entering the country.   The United States certainly did not cover itself with glory with regard to welcoming Jews (and others) driven away from Germany in the 1930s.  All of us are well aware of the importance of the Civil Rights Act of 1964 and the Voting Rights Act of 1965.  But equal attention should be paid to the repeal of the 1924 Act in 1965, which opened American borders—and generated a host of issues surrounding the notion of “inclusion”—as had never been the case before.  Europe as a source of immigrants was quickly supplanted by Mexico and Latin America, as well as by Asia and Africa. 

                What all of this means is that many of the central issues of American politics, including their constitutional dimensions, involve the degree to which a decidedly non-homogeneous populace of immigrants, who upon attaining citizenship also become voters participating in the process of self-governance, will be genuinely included (and welcomed) rather than being viewed as sources of disruption and, indeed, danger to preserving some notion of a “real America” based on ascriptive identity.  Rogers Smith in his invaluable book Civic Ideals identified the tension, from the beginning, between a universalistic liberalism that talked the language of natural rights enjoyed by all human beings, who were ostensibly equal—this is the optimistic reading of the Declaration of Independence—and a distinctly non-liberal tradition based on “ascriptive” identity.  Whether it’s true that for every universalistic liberal, there was a JD Vance speaking the language of blood and soil (and, usually, religion), that has been a continuing battle, both intellectual and, not infrequently, quite literal, in American life.  One should recall that important elements of the Republican Party that elected Abraham Lincoln came from the rabidly anti-immigrant Know Nothing Party.  And one should also remember that Lincoln, who genuinely hated slavery, was also an avid supporter of the American Colonization Society and, as late as 1862, was still entreaties Black notables in Washington to lead what Mitt Romney might have called a movement of “voluntary self-deportation” to Panama (or Haiti, Liberia, or ….) rather than remain in the United States.  In this Lincoln emulated Thomas Jefferson, who justified his lack of any action with regard to ending slavery on the basis that he could not envision a post-enslavement United States that required Blacks and whites to live together in harmony.

                Those attracted to “family metaphors” in politics, such as references to the “American family,” might imagine the the “adaptability” issues that are presented by what we still often call “intermarriage,” whether racial, ethnic, or religious.  Strongly Orthodox Jews, for example, respond to what sociologists term exogenous marriages by saying Kaddish, the prayer for the dead, for the miscreant out-marrier.  No doubt there are similar responses in some other religious communities.  A staple of literature is a child being “disowned” by parents for violating parental assumptions about proper marriage partners.  “Adaptation” to frustrated expectations may be difficult if one lives within a belief system that privileges homogeneity (or various hierarchies within non-homogenous orders).  What is true at the “micro-stage” of family relations can obviously take place at the macro-level of societies and particularly those states that conceive of themselves as “nation-states” that, by definition, involve shared attributes other than the coincidence of sharing territorial membership.

                Some families, of course, do display “resilience.”  The minimal criterion is what might be called toleration and acceptance, even if not complete emotional acceptance.  Beyond that, of course, is perhaps what Nietzsche might have called “transvaluation” in which a family that had previously cherished its homogeneity now develops a genuine appreciation for pluralism and diversity.  George H. W. Bush was, perhaps, speaking with typical awkwardness when he referred to his “Mexican granddaughter,” the child of Jeb Bush and his Mexican-American wife, but there appeared to be little doubt that the patrician Bush genuinely cherished his progeny. 

                All of this being recognized, we should acknowledge that “resilience” is easier for some than for others, and it is therefore not surprising that a country built on a multi-century legacy of proclaimed homogeneity and superiority would have trouble adapting to, and even more certainly cheerfully accepting, a significantly new reality.   I very often quote the following passage from John Jay’s Federalist 2, who expressed his great “pleasure”  

that Providence has been pleased to give this one connected country to one united people--a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs, and who, by their joint counsels, arms, and efforts, fighting side by side throughout a long and bloody war, have nobly established general liberty and independence.

I also always note not only that Jay was a notably intelligent member of the Founding generation—he would go on to become the country’s first Chief Justice of the United States Supreme Court, which he left to serve as governor of New York—but also that, as a New Yorker, he was most certainly aware that the Constitution had quickly been translated after its public debut in September 1787 into Dutch so that the descendants of those families who had settled New Amsterdam (before its being conquered by the British and renamed after the Duke of York) could understand it and decide, when voting for delegates to the state ratifying convention, whom to support as between its proponents (like Jay) and opponents.  He probably knew as well that it had been translated into German for the benefit of the roughly one-third of that state’s population who, to the consternation of Benjamin Franklin, continued to speak their native language and seemed reluctance to assimilate into a Pennsylvania culture dominated by those who identified with Great Britain. 

            One might hypothesize that Jay wrote what he himself had to recognize as a remarkably tendentious and inaccurate description of the actualities of America in 1787 because he realized that the Constitution would be a much harder sell, in New York and elsewhere, if he forthrightly acknowledged that it was establishing a polity in which a newly empowered central government would have vast new powers over every single member of the ostensibly singular “People” in whose name the Constitution was being “ordained.”  Agrippa, an anti-Federalist from Massachusetts, expressed his deep skepticism that a single government could establish genuinely legitimate rule over the “peoples” spread out from what is now Maine to the southern border of Georgia.  Even if enslavement had not so obviously divided the United States and created a “house divided” that would ultimately destroy the existing Union, there were many other differences that might challenge one’s appetite for “inclusion.”  Massachusetts had, of course, earlier driving Roger Williams out of the state to what became Rhode Island, as well as hanging four Quakers for their heresy.  Not surprisingly, Massachusetts maintained an established (Congregational) church until 1833.  One plausible way to read the First Amendment’s ban on established religion is as limiting Congress’s power to interfere with the various religious preferences or establishments that were still present when the Amendment was added to the Constitution in 1791.

            It is a reality of American political life in 2026 that we continue to be rent not only by racial and ethnic cleavages, but also by a fundamental cleavage between those who yearn for a “Christian Nationalist” America—like predecessors who supported overtly amending the Constitution by declaring the United States to be a “Christian Nation”—and those who are basically horrified by such a vision.  This latter group ranges from full-blown secularists to Christians like, say, New York Times columnist David French who continue to support a strong separation between church and state. 

            Skowronek introduces the “adaptability paradox” as follows (p. 23):

Each breakthrough projected the priority of inclusion onto a framework built to accommodate a more restricted range of participants, and each successive adaptation to democratization has had to reach farther afield to rationalize new governing arrangements.  The text abides beside a long history of development that has pressed the boundaries of constitutional plausibility and political credibility.

The “paradox” is perhaps that we as a society envision the Constitution as the foundation not only of unity, but also as stability through time.  Thus the allure of what some of us regard as a patently indefensible notion of “originalism” that fixes the Constitution’s meaning in the dictionaries published either at the turn of the 19^th century or, for some, 1868.  Antonin Scalia proudly defended a “dead” Constitution because the very idea of a “living Constitution” seemed to challenge why we might want a constitution in the first place, which was to tie us down, to supply what Jefferson called “chains” that would prevent us from violating its commands or breaching its limits.  “Adaptability” was not Scalia’s priority!  But John Marshall was certainly correct when he wrote, in McCulloch v. Maryland, that we must never forget that the Constitution was “designed to endure,” and that such endurance was possible only so long as “it was adapted to the various crises of human affairs.”  That sentence itself continues to be of enduring importance, and insofar as various sorts of “inclusions” are viewed as among the “crises” facing the United States, it will capture a fundamental feature of American political debate and concrete political actions.