For the Balkinization symposium on Stephen Skowronek, The Adaptability Paradox: Political Inclusion and Constitutional Resilience (University of Chicago Press, 2025).
Noah A. Rosenblum
*
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.
*
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 18th
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).
*
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 18th 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.
*
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.