The Avoidant Constitution?

Guest Blogger

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

Noah A. Rosenblum

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The Adaptability Paradox raises a profound and challenging question about the way the Constitution works. Steve uses that question to retell the history of American government as the shift between a series of different settlements, which has only recently broken down. I wonder, though, whether the book suggests a different historical account, one that emphasizes not consensus, but dissensus. In this way, his book points us towards a new approach to Constitutional theory—and new historical and political projects that would go with it.

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At the heart of Steve’s new book is a provocative insight about the relationship between the Constitution and American political culture: the Constitution has functioned best not when it resolved our most fundamental political disagreements, but when it allowed us to safely ignore them. “The Constitution’s historic capacities to easy pressures on the system, to induce buy-in to a new deal, and to regenerate agreeable ways of governing,” he concludes, “rested not on the principles derived from its interior design but on the social exclusions the framework maintained. Exclusions provided the ballast that held the system together.” (204). One might say that it’s what the Constitution put beyond the government that made governance at all possible.

This is a counter-intuitive claim. The Constitution is often at the center of our political disagreements. The more significant the conflict, the more we appeal to it. The Constitution’s very endurance and importance encourage us to rely on it. We turn to it to resolve our hardest problems and eek out durable solutions. And yet, Steve’s book contends, the Constitution’s authority rests on its inability to mediate our most vexing oppositions. If the Constitution is failing us now—and Steve worries it is—it is because we have started asking too much of it. We need our Constitution to help us avoid the political problems we cannot address, not drive us to them.

I think this is another way of stating the “paradox” that gives Steve’s book its title. Time and again, American democracy has reinvented itself, pouring new processes into old forms, as the government has adapted to new social and political conditions. The Adaptability Paradox elegantly recapitulates this step-wise transformation of American democracy. The original Constitution was framed for an 18^th Century polity shot-through with social hierarchies and status norms. “Democracy,” for many of the Framers, was about the rule of local notables, not egalitarianism. And yet, within a few decades, it had become a regime of universal white manhood suffrage, something different from what had been envisioned at Philadelphia. A few decades more and it was a bona fide mass party state, a government the Framers would have abhorred.

That the founding charter has accommodated such fundamental shifts in the government’s organization and bases of legitimacy is genuinely remarkable. In the past two hundred and fifty years, the French have gone through four republics, three kings, two emperors, and a smattering of other constitutional forms; the U.S. Constitution has had, by contrast, but a few amendments, none of which altered the fundamental structure of government. While we have had several different American Republics, they have all fitted themselves to the Constitution, and the Constitution has, somehow, made room for them all.

But this adaptability has come at a price. To keep the Constitution as a going concern, new forms of governance need to generate renewed buy-in to the Constitution itself, however transformed. There is a kind of positive political science at work here: whatever the Constitution comes to mean at the hands of a new political regime, the major political actors in American society must conclude that they have more to gain than to lose from playing by its rules. No one with enough pull to destabilize the government as a whole can feel like too much of a loser or worry they will never have a chance to win. When it comes to the most deeply felt disagreements, the Constitution simply cannot come down on one side or the other, cannot make a powerful interest feel as if its governance goals are unachievable. To enable democratic adaptation, the Constitution must constitutionalize avoidance. The more divisive the policy, the more studiously must the Constitution foreclose consideration. Such are the wages of “political security” (122).

Steve terms this “bounded resilience.” The Constitution is resilient—and facilitated the resilience of American democracy—by being bounded. For most of U.S. history, rather than seek to resolve our fundamental disagreements, the Constitution has composed them. It canalized unresolvable oppositions, preventing them from making governance on other issues impossible. Adaptions succeeded where they helped channel irresolvable conflict away. “The containment of conflict facilitated and sustained the adaptation. The willingness to engage rested on the terms of engagement, and the terms of engagement rested on the willingness to exclude.” (61).

If the government is breaking down now, it is because the Constitution has become “unbounded.” We are no longer willing to put fundamental questions beyond the government’s reach. With no restrictions to prevent intractable disagreements from becoming the stuff of government, or mediating institutions to soften them, the Constitution has become directly subject to irresolvable conflicts. “American government, once a tightly bound social compromise, was left with no escape from the nation’s deepest divisions.” (141).

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Steve’s recapitulation of American political development is virtuosic. The Adaptability Paradox extends the work he did with Karen Orren in the great (and not sufficiently appreciated) The Policy State, which tracked the expansion of the domain of the political across American history. There, Steve and Karen showed how more and more questions became grist for the mill of government; here, he shows the cost of this expansion. In this way, the book offers a contrapuntal note to Steve’s earlier, celebrated Building a New American State and The Politics Presidents Make. Those books emphasized the creativity of American state-building in the face of path-dependent institutional accretions. The Adaptability Paradox, like his co-authored Phantoms of a Beleaguered Republic, stresses the constraining costs of that administrative inheritance. Innovation may be born in political time, but intercurrence takes place in secular time. Fittingly, The Adaptability Paradox summarizes two centuries of institutional development to explain how the Constitution’s bounded resilience worked and why it has, only now, begun to break down.

Steve fashions a narrative of succeeding settlements, but I wonder if his own insight into the conditions of constitutional adaptability militates against this stadial account. I need to start by conceding that I, too, narrate the history of American democracy this way: as a series of settlements, Kuhnian political paradigms structuring debate before the anomalies they failed to incorporate overwhelm them and force a radical shift. This historical story finds its analog in the succeeding party systems that have organized American politics since the election of John Adams: Federalists and Republicans, Democrats and Whigs, and so on. My critique of Steve is an auto-critique too.

The Adaptability Paradox trades on language of this kind. It periodizes in a conventional way, distinguishing the 18^th century “original Constitution” from the Jacksonian/Whig “antebellum party state,” the “post-Reconstruction party state,” “the administrative state” of the Progressive Era and New Deal, and the “unbound Constitution” produced by the "rights revolution” and the backlash it engendered (108-09). The book impressively reconstructs how these different regimes mediated fundamental conflicts or kept them off the national agenda to achieve enough stability for functional governance.

But this very account points towards an alternative narrative, one that emphasizes not consensus, but dissensus. After all, the fundamental conflicts these succeeding settlements composed were never resolved. At best they were mediated or suppressed, channeled away from national politics. Conflict never stopped; it continued in other fora.

One issue, of course, occupied pride of place in the American constitution of avoidance: racial equality. As The Adaptability Paradox makes clear, it is the question of equal treatment regardless of race that, more than any other issue, has posed the greatest threat to destabilizing national governance arrangements all across American history, from the dawn of the Republic to today. On its account, while different national settlements sought to exclude several different issues, their success as a settlement turned precisely on their capacity to keep race from sundering the nation. When racial equality became the lynchpin of the settlement rather than an excluded term, during the Second Reconstruction, the whole process of constitutional adaptability broke down: The Adaptability Paradox puts the transition from functional “bounded resilience” to the dysfunctional “unbound Constitution” at the reaction to the Civil Rights movement.

Centering race brings out the problem with talking of these different political settlements as “settlements.” They settled nothing. The succeeding political orders out of which Steve (and I) build narratives never actually achieved a consensus on the question of racial equality. The appearance of consensus masked continuous, ongoing conflict. This is true even (especially?) at the extremes. At the peak of Reconstruction, so-called white “redeemers” schemed to disfranchise Freedmen and reimpose racial hierarchies; at the height of Jim Crow racial egalitarians organized to beat back resurgent white supremacy. There were political fights over Confederate voting in the aftermath of the Civil War and political fights over lynching in the era of Birth of Nation. What looks like consensus from afar was always really dissensus.

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We can make the same point in a less historical mode by going back to the positive political science foundations of “bounded resilience.” A functional settlement, Steve notes, needs to convince would-be opponents to buy-in. The avoidant Constitution purchases that buy-in by credibly keeping divisive issues off the national agenda. But political security is not a buy-it-for-life proposition. It needs to be continuously renewed. Whether a given faction has more to gain than to lose from opting into the Constitution is not a discrete calculation but a continuous function. When it turns negative, the system comes under strain. Opting out is always an option.

          Foregrounding the perpetual need to maintain buy-in shifts the emphasis in Steve’s narrative, reverses the relationship between the settlements and their breakdown. In a country as large and diverse as ours, perhaps the system’s natural state would be dissensus. One would expect that governance is impossible, that intractable divisions would always dominate our politics. If the baseline condition of the American polity should be perpetual conflict over fundamental differences, the puzzle to ask is under what extraordinary conditions has governance managed to be something different. The chain of political settlements that give The Adaptability Paradox its historical arc would then be best thought of not as successive regimes but rather exceptional moments when, for different reasons at different times, governance became possible, at least on some narrow set of issues.

          Is that the most we can hope for from our government—that, under unusual circumstances, for a brief period of time, it can ignore the important questions that divide us to tackle matters that matter less? What a chastened vision of government. It irks me—as it does Steve: he ends his book with a rousing call to “creat[e] the conditions under which a comprehensive reassessment would become safer and from which a more constructive vehicle for reordering might emerge.” (235). We need a Constitution suitable for “full inclusion.” But Steve is right that this world is not our world. We should expect more. But it will fall us to make a world that makes such expectations plausible, nevermind realized.

          In the meantime, as a professor of constitutional law, I find Steve’s counsel both sobering and liberating. It would indeed be strange if the secret to resolving our most fundamental disagreements were to be found in the right construction of such an old and foreign document. Hard questions are hard, and no magic of law can make them easy. To expect our Constitution to hold us together when we are genuinely divided is to put more on the text than it will bear. Steve’s book is, at a minimum, a license to look for less in constitutional law, and more in other political formations.

          But I think his is more than a counsel of despair. I find, at the end of his essay, the intimations of something new and bright, at least for scholarship. Analytically, Steve points us towards what might be a more fruitful approach to Constitutional analysis: not trying to figure out what side does the Constitution take in such or such a fight, or what does it mean for such or such a legal question, but rather: how does it channel disagreements towards or away from political processes, which disagreements does it tend to sharpen and which does it tend to diffuse? That the Constitution has done this differently at different moments suggests a new constitutional history of the United States, one that shows not just how one settlement succeeded another but rather tracks the way intractable conflicts remade the Constitution until they were remade in turn. That history might inform the new project Steve, echoing Dewey, calls for at the end of his book. Understanding how the Constitution works and how it has failed us must be the first step towards imagining how to reinvent it anew.

Noah A. Rosenblum is Associate Professor of Law at NYU; he can be reached at noah.rosenblum@nyu.edu.