For the Balkinization symposium on Stephen Skowronek, The Adaptability Paradox: Political Inclusion and Constitutional Resilience (University of Chicago Press, 2025).
Nikolas Bowie
Two years ago, a ballot
question asked Rhode Island voters whether there should be a convention to
revise the state’s constitution. The Rhode Islanders answered no. Overwhelmingly.
With 62 percent of voters opposing the proposal, an observer across the border
might assume the Ocean State’s residents love the way their government is
structured. It looks a lot like the federal system, with a bicameral
legislature chosen by first-past-the-post elections, a separately elected chief
executive, and an appointed judiciary that sits for life.
Rhode Island isn’t unique
in its support of the status quo. It’s one of fourteen states whose
constitution requires voters to consider, every few decades or so, whether
their state constitution needs a reset. From Alaska to New York, voters in
these states consistently reject the request. Year after year, when Americans
are given the most frictionless option possible for reimagining how government
in the United States might be restructured, they choose to keep things as they
are.
The irony, of course, is that the Federal Constitution looks frailer than ever. The past two decades have crammed newsfeeds with the downsides of bicameralism, first-preference-plurality elections, presidentialism, and judicial supremacy. As Stephen Skowronek observes in The Adaptability Paradox, the institutional arrangements that sat at the vanguard of 18th-century political science have increasingly failed to serve as an agreed-upon anchor for our current, more inclusive society. He notes that the Federal Constitution has proven remarkably adaptable at responding to crises, including those sparked by partisanship and demands for white male suffrage in the 1820s; abolition and demands for black male suffrage in the 1860s; the administrative state and demands for women suffrage in the 1910s; and the attempted fulfillment of universal inclusion in the 1960s. But he writes that this adaptability comes with a paradox: Each time the Constitution is renovated to accommodate a more inclusive polity, it loses its ability to “make a burgeoning democracy work aligned with a shared understanding of its formal arrangements and their purposes.” The more the Constitution adapts, the less coherent its structure becomes.
Skowronek rightly notes
that when it comes to what should be done about this paradox, “we have ideas
aplenty.” Legal scholars and political scientists regularly diagnose our
constitutional maladies and prescribe reforms that will push the United States
toward European-style social democracies, with their parliaments and
proportional representation. Yet he also correctly observes that the problem
facing the United States Constitution isn’t simply removing the filibuster,
Electoral College, or other “blockages and constraints” that currently cabin
democracy. He writes that it is naïve and misguided to prescribe reforms
without “attending to reordering as directly as past generations of reformers
did,” with explicit focus on how to build both a democratic structure and a
democratic culture to support it. What we’re missing now is not ideas,
but some sort of vehicle for making “a politically convincing case” for
any of them.
In my view, Rhode Island’s
vote in 2024 offers one explanation for why this vehicle appears so hard to
locate today—and where we should look to find a way out of our current
constitutional predicament. The thing that is most obviously missing from
constitutional discourse today that was present during constitutional
adaptations in the past is state constitutional conventions.
In each of Skowronek’s
examples of when the Federal Constitution “adapted” to accommodate a more
democratic society, the national government was not at the forefront of
structural change but instead functioned as a lagging indicator. In the 1820s,
when the national electorate expanded to accommodate virtually all white men,
it did so because states were expanding their own electorates by removing voter
qualifications and restructuring state governments to accept mass participation.
In the 1860s, when Congress sought examples of what a true “republican”
government should look like, it modeled its antidiscrimination and
voting-rights legislation on what some Northern states were already doing. In
the 1910s, the Nineteenth Amendment followed the full or partial
enfranchisement of women in dozens of states. Even the “rights revolution” of
the 1960s didn’t come out of nowhere but followed a long history of state
constitutional conventions and amendments that enshrined the right to vote
alongside environmental rights, labor rights, and sex equality.
These sorts of changes in
state constitutions did not cause subsequent changes in the Federal
Constitution. But they were each the product of organized movements that grew
and built power from smaller victories. State constitutions tend to be far
easier to amend, both culturally and structurally, than the Federal
Constitution. They reflect Thomas Jefferson’s argument that “the earth belongs
always to the living generation,” and therefore all constitutions should allow
future generations to decide for themselves how to structure their own society.
Many state constitutions originally embodied his idea by mandating
constitutional conventions every twenty years. This idea is why Rhode Island
and thirteen other states continue to hold referenda on the question.
Employing conventions and
other methods of amending state constitutions, groups of workers and
disenfranchised communities have shown the rest of the country how
transformations that might seem radical can be folded within the American
tradition. Conventions in particular focus public attention on a specific,
concrete question: what should our government actually look like? That question
gives movements a clear target to mobilize around, forces communities to engage
seriously with the substance of democratic governance, and generates organizing
capacity that has historically proven transferable to the federal level.
But in recent decades, lawyers,
especially on the left, have increasingly viewed conventions with skepticism.
Since the 1970s, the organizations that once sought to change constitutions
through mass politics have put their faith in courts to secure political
victories.
Consider what happened in
Rhode Island in 2024. No one campaigned for the ballot question on whether to
hold a constitutional convention. But a coalition led by the ACLU and state
labor unions still opposed it. They spent tens of thousands of dollars warning
that a convention “could be disastrous for Rhode Islanders’ rights and
liberties.” They noted that a constitutional convention “is controlled by the
majority,” and therefore was “almost guaranteed to not consider the rights of
minorities.” In a state where Democrats outnumber Republicans 3 to 1, the
coalition warned that a convention would leave abortion access and LGBTQ+
rights “at risk.”
Yet as Skowronek’s book
amply demonstrates, these sorts of political victories are always “at risk,”
even if one believes they are currently protected by courts or constitutional
text. To literally campaign against mass politics at the state level—to fear
every majority, including one politically aligned with you—is to reject the
very premise of democracy and announce that the world around us is the best we
can hope for. If a state like Rhode Island refuses even to consider how it
might improve upon the federal structure amid a clear breakdown among federal
institutions, it is difficult to imagine what would push Congress to do so on its
own initiative.
What Rhode Island’s
experience reveals is that the greatest obstacle to constitutional renewal is the
refusal of those who believe in democratic change to trust democratic
processes. The movements that remade American government in the past did not
begin by asking courts to protect them from majorities. They organized,
persuaded, won, and demonstrated that constitutional adaptation was both
possible and necessary. Until leaders emerge who are willing to make that case
again—at the state level, before real electorates, in contests with genuine
stakes—we will go on producing “ideas aplenty” and democratic renewal not at
all.
Nikolas Bowie
is the Louis D. Brandeis Professor of Law at Harvard Law School and can be
reached at nbowie@law.harvard.edu.