For the Balkinization symposium on Stephen Skowronek, The Adaptability Paradox: Political Inclusion and Constitutional Resilience (University of Chicago Press, 2025).
Andrea Scoseria Katz
Having read several earlier versions of Stephen Skowronek’s The Adaptability Paradox, I was struck by the book’s preface, with this arresting new ending:
This book is going into production just as a new administration is about to take charge. The elections of 2024 have brought our constitutional institutions into a highly charged partisan alignment, and detailed plans for a thoroughgoing shake-up are already in hand. [T]he following pages offer a view from the precipice. Next steps are ripe with hazard. The outlook is frightening. But we did not arrive here suddenly. The situation at hand did not arise out of the blue. The Adaptability Paradox is about how we reached this point.
At the time those words were written, Donald Trump had already organized a failed electoral coup, twice been impeached, faced multiple criminal charges and numerous civil lawsuits—and been reelected to the nation’s highest office. Even this gave little sense of what lay ahead. Just one long and chaotic year into his second term, Trump has gone further than any other president in using his formal authority to cripple, politicize, and weaponize the power of the federal government. He has emptied out whole agencies, prosecuted political enemies, strongarmed universities and the legal profession into compliance with his agenda, set a federal police force against American citizens, started a unilateral war of choice, and bid to interfere with the upcoming midterm elections.
How, as Skowronek asks, did we reach this point? The Adaptability Paradox has much to say about Trump’s causes, and his consequences.
As constitutional theorists know, democracy requires a constitution, yet risks destroying it in the bargain. The Adaptability Paradox describes the selfsame contradiction: our Constitution’s inclusivity has become a threat to its survival. For most of American history, Skowronek argues, our founding document proved resilient because it adapted to diverse democratic demands without ever requiring, or producing, a fully realized democracy. Prior constitutional reorderings (the Jacksonian party state, the Progressive administrative state, the New Deal) worked because they were “bounded”: they maintained the social exclusion of unwanted parties (women, Black Americans, non-citizens, the unpropertied) (8). Such exclusions were not just moral failings, Skowronek writes, but a kind of “ballast” that “h[eld] the frame together” (35).In a book fond of paradoxes, the Rights Revolution of the
1960s and ‘70s is one more, the moment that American democracy both became complete
and started to fall apart. With all comers admitted to the deliberative arena, no
issue was off the table, shared premises dwindled, and constitutional politics became
a series of existential clashes in which every side believed it could not afford
to lose. “With full inclusion,” Skowronek writes, “security is in short supply,
there is no discounting who is next in charge, and those same separations and
checks have been weaponized to vent irreconcilable differences” (204).
It seems to me that Trump, a democratically elected
president who threatens to destroy democracy, is symptomatic of the same paradox.
Scholars have convincingly depicted his election as a rejection,
by the masses, of the very values of tolerance and inclusivity that underpinned
the Rights Revolution’s perfected democracy. Others have shown that his simplified Manichean narratives and overweening paternalism speaks to a broader fatigue among voters with democracy
(whether democracy as it exists right now, or as a system itself).
For voters sick of the complexity of democracy, Trump is a
president par excellence. Their grievances are real. The solution, however, is
not.
Consider this account of our government: the president
mandates, by the stroke of the pen, some policy change that is sold to the
American people as transformative (“the Green New Deal” “Make America Great
Again”). Inevitably, it fails to meet
the moment. The White House changes hands in an election,
the prior policy is disavowed and dismantled, and the cycle begins again.
Trump typifies the pattern, but Skowronek, a longtime student of the
presidency, has been drawing out this link for years. His work has shown that,
over the span of American history, social movements,
channeled by the president (Jacksonian democracy, Lincolnian nationalism, the
New Deal, Reaganism) have remade the office and the face of government alike. Those
cycles of revolution grew progressively more attenuated over the years as the
hedge of institutions surrounding the office thickened, leading to the
dismaying possibility that even the president—the only institution today that seems capable of decisive
action—has lost its capacity for revolution.
In two strands of my recent work—on judicial
usurpation of the constitutional order,
and on the democratic mobilization
that once pushed back against constitutional fetishism—I’ve
criticized the shallowness of American democracy’s present form. Skowronek’s
paradox suggests that these twin phenomena may derive from a lack of belief in
democracy itself. (Skowronek sees too much inclusion as the problem; one might
also blame gaping income inequality,
the broken party system,
technological change,
and the rise of the modern conservative legal movement, with its deregulatory ambitions,
racial retrenchment,
and its phalanx of judges
aiming squarely at Congress’s prerogatives to reorder the state). Either way,
absent democratic faith—in Congress, elections, or the basic legitimacy of
outcomes—the nation has resorted to quick fixes: presidential overpromising,
judicial activism, the false of promise of extra-constitutional adaptability
itself. These stopgaps have driven us into a corner.
Courts and the president, I believe, are not pure usurpers.
They are, at least in part, filling the void left by our own ambivalence toward
self-rule. As I argued in my work on the Progressive Era, it was not always so.
The great progressive reform movements turned, not to executive power or judicial
creativity, but to Article V, managing to push across four system-altering amendments
between 1913 and 1920 in a broader era of “constitutional tinkering.” Many reforms
proposals targeted the countermajoritarian features of the constitutional order
itself: the Electoral College, lifetime judicial tenure, indirect Senate
elections.
The Progressives, in other words, did what Skowronek
implies is now impossible: they tried to adapt the Constitution through
democratic mobilization rather than through extra-constitutional adaptation.
And they had real, if incomplete, success.
Why could they do it? Partly, of course, by virtue of the
ballast Skowronek describes: theirs was a dramatically exclusionary democracy,
and that exclusion constrained and stabilized their mobilizations in ways they
could not fully see. But partly, I think, because they trusted the democratic
process enough to stake their reform agenda on it. They believed that a
mobilized, informed citizenry could change its own Constitution.
This is where Skowronek leaves us at the most vertiginous
edge. He suggests the current moment is genuinely unprecedented: prior
generations stabilized constitutional change through exclusion, but that
stabilizer is gone and cannot decently be restored. The question, as I read
him, is whether we can do something no generation of Americans has ever done: sustain
democratic self-governance on genuinely inclusive terms.
The answer has to lie, if it lies anywhere, in elections. Elections,
to be sure, require trust. But the Progressives found themselves, too, penned
in by a divided society and captured institutions. Their saving grace was a “fierce discontent”
that forced a fractious and fractured society into a coalition that lasted long
enough to force along the Constitution’s rusty Article V machinery. Today,
Trump is unpopular,
and huge problems—climate change, AI, security and the global order—remain
unsolved. A fierce discontent is coming.
Skowronek asks whether we can adapt. The more precise question
may be whether, when crisis comes, we can recover our trust in democracy, the
Constitution, and ourselves.
Andrea Scoseria Katz is Associate Professor
of Law at WashU; she can be reached at andrea.katz@washu.edu.