Confronting Current Constitutional Dysfunctions: Civic Constitutionalism and the Adaptability Paradox

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

Elizabeth Beaumont

In this third and final post of the series, I argue that today’s constitutional stresses stem less from the “unbinding” Stephen Skowronek identifies than from a broader constellation of post-inclusion challenges—extreme polarization, economic inequality, technological disruption, and deliberate political choices that have strained democratic governance across many systems. Skowronek’s framework illuminates real challenges with the conflicts that can arise from democratization in a highly pluralist constitutional democracy, but it risks overstating the civil rights revolution as the primary cause while underestimating alternative sources of constitutional grounding. The history of civic constitutionalism suggests a different possibility than Skowronek’s bleak prognosis: a contentious yet regenerative process of civic struggle and consensus-building.

There is growing agreement among legal and political scholars that the U.S. is facing a serious constitutional crisis, with many contributing factors identified (see, e.g., Ackerman 2010, Mann and Ornstein 2012, Levitsky and Ziblatt 2018). Skowronek's analysis offers a different, older, and counterintuitive diagnosis rooted in American constitutional development: bounded resilience, serial adaptations that progressively loosened the constitutional framework, and the democratic breakthroughs of the civil rights revolution that ultimately "unbound" the Constitution from its earlier stabilizing exclusions (21-22). This provocative and important argument demands continued engagement. 

Yet as insightful and impressive as Skowronek’s account is, it functions less as a complete explanation than as one significant strand in a more complex and multicausal account. Reexamining the civil rights revolution shows that it produced a partially successful constitutional adaptation through the rise of a civil and social rights state, complete with new institutional mechanisms, auxiliaries, and meaningful (if incomplete) cross-racial consensus. Many contemporary dysfunctions stem from subsequent forces– economic inqualities and dislocation,  9/11 and its aftermath and deliberate expansions of executive power, the internet and digital revolution— that are not reducible to civil rights-era “unbinding” or fallouts. That a similar pattern of democratic conflicts and strain is visible across countries with markedly different constitutional structures and developmental trajectories suggests that bounded resilience is at most one dimension of a more complex and multicausal crisis (see, e.g., Levitsky and Ziblatt 2018, Nord et al 2025).

Prosecutorial Tanking

There are two standard explanations for the recent high-profile refusals by grand juries in DC to return indictments. One is that they are engaged in a kind of resistance to what they see as executive overreach. Another is that the prosecutors are just incompetent.

But there's a third possibility. Perhaps prosecutors are deliberately making a weak presentation. Think about that for a second. Say you're told to seek an indictment in a case that is weak or unjustified. One option, given that grand jury proceedings are secret, is to just go into the room and try to lose. Then you can come out and tell your superior: "Look, I tried to get the indictment that you wanted, but the grand jury refused." Unlike NBA teams that tank, no one will ever know the truth.

Reexamining the Civil Rights Revolution: Partial Adaptation and the Rise of a Civil and Social Rights State

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

Elizabeth Beaumont

My first post outlined Stephen Skowronek’s adaptability paradox and his sobering claim that the civil rights revolution ruptured the Constitution’s bounded resilience. On his telling, broad inclusion dissolved the social exclusions that once enabled stable constitutional reorderings, leaving power and authority reconfigured in ways that magnified rather than managed conflict.

Here I undertake a reassessment of the civil rights revolution of the 1960s–70s. I argue that it can be seen as a partially successful adaptation, producing new institutional mechanisms and “auxiliaries” in the form of a “civil and social rights state,” alongside meaningful if contested cross-racial consensus on commitments to political inclusion and equality. Landmark statutes, Great Society social programs, administrative enforcement, litigation and judicial decisions, and civic mobilization contributed to significant, if incomplete, reordering. 

For Skowronek, the civil rights revolution marks the culmination of the adaptability paradox, and the point at which the constitutional system's bounded resilience was dissolved by broad democratization. As the body of "We the People" expanded toward broad inclusivity, encompassing not only white men, but African Americans, women, Indigenous peoples, racial and religious minorities, disabled people, LGBTQ+, and others, the U.S. constitutional system, on his account, lost its capacity for regeneration and spiralled into dysfunction. Although he wholeheartedly supports the civil rights revolution’s goals of inclusion and equality, Skowronek’s analysis of its political and constitutional consequences is almost entirely negative, seeing them as the root causes of destabilization. It can be easy to adopt a purely celebratory or uncritical stance toward the civil rights revolution, but Skowronek’s evaluation overcorrects in the other direction – underestimating the achievements and institutional innovations, overlooking the partial consensus achieved, and placing too much blame on the civil rights era for the current crisis. Reconsidering this history suggests a mixed picture, one that included many of the elements Skowronek associates with successful constitutional adaptation through the party state and administrative state.

The Unbound Constitution Reconsidered: Skowronek’s Framework and History of Constitutional Reordering

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

Elizabeth Beaumont

When Stephen Skowronek argues that the civil rights revolution “unbound” the U.S. Constitution, he posits a troubling paradox: America’s greatest democratic achievement—the sweeping inclusion of the 1960s and 1970s—may have ended the system’s adaptive capacity.  But does this diagnosis adequately capture what happened after the 1960s? In this first post of a three-part series, I engage Skowronek’s sophisticated historical-structural analysis while highlighting important dimensions his framework underestimates or overlooks. The civil rights revolution, I will argue in the next post, produced a partially successful constitutional adaptation—one that generated new institutional mechanisms and meaningful (if incomplete) cross-racial consensus. Current dysfunctions stem less from “unbinding” than from a complex set of post-inclusion stressors. Constitutional grounding, moreover, can emerge from the accumulated meanings forged through successive civic struggles rather than old exclusions.

Since the framing of the U.S. Constitution, waves of reformers– from Anti-Federalists, to free African Americans and anti-slavery activists, to suffragists, labor activists, progressives, and civil rights activists– have challenged undemocratic features of the system and pushed for inclusion and transformative change. Their ideas and struggles have reshaped the political community and launched constitutional reconstructions (see, e.g. Ackerman 1991, Ritter 2006, Balkin 2011, Beaumont 2014). In his thought-provoking new book, Stephen Skowronek turns our focus to crucial questions of how, and whether, such reorderings were politically implemented. Were their goals carried forward through stabilizing adaptations that anchored a new consensus, or were they obstructed, redirected, and left unfulfilled? Skowronek draws unsettling conclusions from his analysis of four historical eras of constitutional development. His most sobering contention is that the resilience of the U.S. Constitution is not only limited, but may be inseparable from its injustices: earlier adaptations had been made possible by the very exclusions that prevented full democratic citizenship for African Americans, women, and others, by limiting the field of competing interests enough to enable minimum consensus.  On this account, although the civil rights revolution of the 1960s-70s brought broad inclusiveness to American democracy, it could not generate a successful constitutional adaptation. Instead, he argues, the Constitution became “unbound,” loosened from its founding structure and pulled back and forth in divisive conflicts, eventually producing the present era of polarization, democratic backsliding, and constitutional dysfunction. In this telling, the greatest achievement of American democracy – the sweeping democratic expansion of the latter 20th century – may have ended the constitutional system’s capacity for successful reordering, with no clear way forward. 

By drawing on his far-ranging expertise in American politics and taking a systems-level approach, Skowronek offers a sophisticated account of broad patterns of constitutional change, boldly reconceptualizing the development of constitutional democracy in the U.S. This includes potent arguments regarding how new institutional mechanisms and “auxiliaries” may help constitutional adaptations succeed by reorganizing governance and managing conflict. His framework also provides a further, and powerful, challenge to originalist accounts of the constitutional order. Yet his understanding of “bounded resilience” and the criteria for judging the success or failure of a constitutional adaptation raise questions.

The Material Foundations of American Constitutional Development

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

Jeremy Kessler 

Stephen Skowronek’s The Adaptability Paradox offers an admirably concise overview of American political and legal development from the Founding to the present day. That would be enough to make it a valuable addition to legal scholars’ bookshelves and graduate students’ orals lists. But the book is more than synthesis. It advances an original, interpretive argument about the paradox that churns in the engine room of American constitutional government. According to Skowronek, the trend that has defined American legal and political development is the transfer of ever greater power to the national government in response to ever more expansive bids for social and political “inclusion” (pp. 20-25, 209-11). Whether dubbed “democratization” (p.3) or “inclusive nationalization,” which more precisely captures Skowronek’s meaning, this trend has periodically pushed up against two stabilizing features of American constitutional government. The first is the original constitutional text, which sought to protect particular and local interests from national majorities. The second is a series of social exclusions (of the propertyless, of Black Americans, of women, and so on) that enabled coordination and cooperation among otherwise rivalrous particular and local interests. As inclusive nationalization dislodged particular and local interests and overrode social exclusions, new “auxiliary” institutions emerged to restabilize constitutional government. The most significant of these extra-constitutional auxiliaries were the “party state” of the nineteenth century and the “administrative state” of the twentieth (p. 19, 39-108). Each helped to mediate the conflicts unleashed by inclusive nationalization, establishing new mechanisms for coordination and cooperation across an ever larger and more diverse polity.

The mid-twentieth century rights revolution largely fulfilled the project of inclusive nationalization, but it left no new auxiliary in its wake (pp. 126-156). Today, as a result, social struggle takes the form of factional appeals to bare yet indeterminate constitutional principles. The goal of these appeals is to secure greater factional control of the formal branches of constitutional government and the old extra-constitutional auxiliaries of party and bureaucracy (pp. 26-29, 203-205). Principles alone, however, cannot and have never knit back together riven social relations. Only a novel auxiliary institution, capable of coordinating contemporary social rivalries, could restabilize constitutional government. The absence of such an auxiliary leads Skowronek to ask whether the very diversity of the present polity and the intensity of its inclusive (if often rivalrous) expectations now impede the construction of a new coordinating mechanism (pp. 225-233). In other words, the laudable capacity of American constitutional government to adapt to inclusive nationalization may have rendered further adaptation impossible. Hence, the “paradox” of Skowronek’s title.