Confronting Current Constitutional Dysfunctions: Civic Constitutionalism and the Adaptability Paradox

Guest Blogger

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).

Structural Tensions and Post-Inclusion Stressors

The U.S. constitutional system contains deep tensions around democracy. At the time of its adoption, it was the most democratic in existence, in terms of its system of popular representation. Yet it was also designed with numerous undemocratic elements that prevented or created barriers to broad or equal democratic inclusion, representation, or influence over governance. Some of these problematic features have been nullified or transformed through pushes for greater inclusion – such as the three-fifths clause and the indirect election of senators – while others remain, contributing undemocratic and dysfunctional politics, such as the Electoral College, equal Senate representation, life tenure for Supreme Court justices, and the high bar for formal constitutional amendment (see, e.g. Dahl 2003, Levinson 2006). These structural features, combined with pathologies such as the campaign finance system, surely bear some responsiblity for current political dysfunctions, and should be widely debated as targets for constitutional reform.  Yet Americans are too often encouraged to view the founders’ Constitution as beyond critique or reform rather than to learn about and debate its “fault lines,” examine how important and transformative struggles for constitutional change have been for our past, or consider how civic mobilization could lead to constitutional reform in the present (see, e.g., Levinson  2020, Beaumont 2023).

Alternative Sources of Constitutional Grounding

Skowronek's portrayal of an “unbound” Constitution highlights the risk that full inclusion could strip away grounding for constitutional principles, leading to "mutually unacceptable futures" without shared interests. But this framing rests on a particular, and contestable, understanding of what constitutional grounding requires. Skowronek's conception of bounded resilience depends on a specific kind of grounding: social exclusions, structural constraints, and agreements about what lies beyond the reach of national governance. Historically, these groundings were unjust, as Skowronek acknowledges, but he sees them as functionally stabilizing. This assessment, however, may underestimate how such exclusions invited civic conflicts and constitutional challenges that ultimately destabilized earlier settlements. In U.S. history, maintaining exclusions and inequalities, such as those based on race, gender, class, or religion, may have provided some limited or temporary stabilization, but also often fueled conflict and destabilized constitutional orders, as seen in the lead-up to and outbreak of the Civil War, labor unrest, and civil rights struggles.

But constitutional systems can be grounded in other ways: through a shared appreciation of the trajectory of constitutional history, the accumulated meanings and practices forged through successive waves of civic vision and struggle, and the political and social landmarks that have emerged from those, ranging from pivotal amendments and statutes to evolving civic norms and public understandings of core principles.

Skowronek's portrayal of the Constitution as having become merely an "abstract matrix of possibilities" underestimates how the accumulated history of constitutional debate and democratic achievement provides concrete reference points for contemporary constitutional contests (122). The abolitionists' reinterpretation of equal protection, the suffragists' arguments about democratic inclusion, the civil rights movement's vision of equal citizenship are all constitutional resources that can help inform and ground contemporary debates. As Jack Balkin (2011) argues, each generation's constitutional struggles build on and respond to the accumulated meanings of prior generations rather than starting from scratch. Far from a void, this legacy, built through successive civic struggles, social movements, political leadership, and institutional innovations, offers resources for grounding constitutional principles in broader and more democratically legitimate terms (Beaumont 2014).

Civic Constitutionalism as a Regenerative Path

The question the adaptability paradox ultimately presents, then, is not whether constitutional grounding is possible in a fully inclusive polity, but what type of grounding is possible and through what processes it may be forged. One crucial mechanism for regrounding is civic constitutionalism– the ongoing work of civic actors and social movements in reframing constitutional principles, building new coalitions, and forging new constitutional common sense.

A deep concern with Skowronek’s framework of bounded resilience and an adaptability paradox, coming to a head with the civil rights revolution, is its implication that the American system of constitutional democracy cannot successfully move beyond its roots in a highly exclusionary political order. In contrast, participants in civic struggles, from Anti-Federalists to white working men and laborers, from abolitionists, freedmen, and suffragists to feminists and LGBTQ+ activists, have insisted that these changes were not only possible, but necessary to realize the system’s own principles of popular sovereignty, equal citizenship, and justice (Balkin 2011; Beaumont 2014).

The current dysfunctions of the American constitutional system no longer include legalized social exclusions, but they do include persistent democratic inequalities structural problems and multiple post-inclusion stressors: extreme partisan polarization and intensification of zero-sum conflict; rising economic disparity and insecurity that fuel resentment and populist mobilization; the expansion of executive power and presidentialization of politics (accelerated after 9/11 and further entrenched in subsequent administrations); and the distorting effects of structural features such as gerrymandering, the Senate’s malapportionment, the Electoral College, and an increasingly politicized judiciary. While these problems have been intensified by the constitutional changes and social conflicts that followed the civil rights revolution, as Skowronek's framework pushes us to recognize, they are not reducible to that “unbinding.” They also reflect ongoing institutional tensions, technological and economic transformations, and deliberate political choices that have strained constitutional democracy in the U.S., and in many other countries.

…..

Skowronek suggests a tragic dilemma at the heart of American constitutionalism: if constitutional resilience and stability have depended on maintaining some social exclusions, and if sweeping democratic inclusion prevents stable adaptation, then we appear caught between two incompatible goals: a fully inclusive democracy, or a constitutionally stable one. Which do we prioritize? Or, how can we make our way toward having both? Skowronek’s prognosis is bleak, offering “little reassuring to cling to” (3). He warns that while “the priority of democracy has become unassailable,” if “American democracy has become nothing more than a cold civil war, and the Constitution is but a conduit for contestation, the future looks rocky indeed”(116). Yet history points toward a different possibility. The very civic actors and social movements that have repeatedly sought to refound the constitutional order, even  though it seemed impossible to change, suggest a path forward: a continued contentious yet regenerative process of civic struggle and consensus-building. Both are needed to align the Constitution with the more expansive democracy we have become– and the one we might yet come to be (Beaumont 2014). The question is whether we can summon sufficient civic energy and effective leadership to meet the current dysfunctions.

Elizabeth Beaumont is Associate Professor of Politics and Legal Studies at University of California, Santa Cruz. You can reach her at beaumont@ucsc.edu. 

References

Ackerman, Bruce. 1991. We the People. Vol. 1, Foundations. Cambridge, MA: Belknap Press of Harvard University Press. 

Ackerman, Bruce. 2010. “The Decline and Fall of the American Republic. New Haven, CT: Yale University Press. 

Ackerman, Bruce. 2014. We the People. Vol. 3, The Civil Rights Revolution. Cambridge, MA: Belknap Press of Harvard University Press. https://doi.org/10.4159/harvard.9780674416499

Andersen, Ellen Ann. 2006. Out of the Closets and into the Courts: Legal Opportunity Structure and Gay Rights Litigation. Ann Arbor: University of Michigan Press. 

Balkin, Jack M. 2011. Living Originalism. Cambridge, MA: Belknap Press of Harvard University Press. 

Beaumont, Elizabeth. 2014. The Civic Constitution: Civic Visions and Struggles in the Path toward Constitutional Democracy. New York: Oxford University Press. https://doi.org/10.1017/S0034670515000182)

Beaumont, Elizabeth. 2015. “Education and the Constitution: Defining the Contours of Governance, Rights, and Citizenship.” In The Oxford Handbook of the U.S. Constitution, edited by Mark Tushnet, Sanford Levinson, and Mark A. Graber, 845–864. New York: Oxford University Press. https://doi.org/10.1093/oxfordhb/9780190245757.013.46

Beaumont, Elizabeth. 2023. “Civic Education and Faultlines of Constitutional Democracy.” Balkinization. April 24, 2023. https://balkin.blogspot.com/2023/04/civic-education-and-faultlines-of.html.

Bell, Derrick A. 1992. Faces at the Bottom of the Well: The Permanence of Racism. New York: Basic Books. 

Bok, Marcia. 1992. Civil Rights and the Social Programs of the 1960s: The Social Justice Functions of Social Policy. New York: Praeger. 

Brown, Michael K. 1999. Race, Money, and the American Welfare State. Ithaca, NY: Cornell University Press. 

Burke, Thomas F. 2002. Lawyers, Lawsuits, and Legal Rights: The Battle over Litigation in American Society. Berkeley: University of California Press. 

Carbado, Devon W., and Mitu Gulati. 2013. Acting White? Rethinking Race in Post-Racial America. New York: Oxford University Press. 

Cross, Christopher T. 2004. Political Education: National Policy Comes of Age. New York: Teachers College Press.

Dahl, Robert A. How Democratic Is the American Constitution? 2nd ed. New Haven, CT: Yale University Press, 2003.

Darity, William A., Jr., and A. Kirsten Mullen. 2020. From Here to Equality: Reparations for Black Americans in the Twenty-First Century. Chapel Hill: University of North Carolina Press. https://doi.org/10.5149/9781469654997_darity.

Data for Progress. 2021. “Voters Support Free School Meals.” Data for Progress poll/report. (No DOI; gray literature). 

Data for Progress. 2025. SNAP/public opinion polling. Data for Progress. 

Dudziak, Mary L. 2000. Cold War Civil Rights: Race and the Image of American Democracy. Princeton, NJ: Princeton University Press.

Epp, Charles R. 1998. The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective. Chicago: University of Chicago Press. https://doi.org/10.7208/chicago/9780226772424.001.0001.

Farhang, Sean. 2010. The Litigation State: Public Regulation and Private Lawsuits in the U.S. Princeton, NJ: Princeton University Press.

Fiorina, Morris P., and Samuel J. Abrams. Disconnect: The Breakdown of Representation in American Politics. Norman: University of Oklahoma Press, 2009.

Francis, Megan Ming. 2014. Civil Rights and the Making of the Modern American State. New York: Cambridge University Press. https://doi.org/10.1017/CBO9781139583749.

Gallup Organization. 2020. “Gallup Vault: Americans Narrowly OK’d 1964 Civil Rights Law.” July 29, 2020. https://news.gallup.com/vault/316130/gallup-vault-americans-narrowly-1964-civil-rights-law.aspx.

Gallup Organization. “Gallup Vault: Americans Side With Voting Rights Reforms.” March 23, 2016. https://news.gallup.com/vault/190259/gallup-vault-americans-side-voting-rights-reforms.aspx.

Gienapp, Jonathan. 2018. The Second Creation: Fixing the American Constitution in the Founding Era. Cambridge, MA: Belknap Press of Harvard University Press.

Goldsmith, Jack. The Terror Presidency: Law and Judgment Inside the Bush Administration. New York: W. W. Norton, 2007.

Graham, Hugh Davis. 1990. The Civil Rights Era: Origins and Development of National Policy, 1960–1972. New York: Oxford University Press. 

KFF (Kaiser Family Foundation). 2025. Medicare/public opinion polling. KFF. 

Levinson, Sanford. 2006. Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It). New York: Oxford University Press, 2006.

Levinson, Sanford, and Cynthia Levinson. Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws That Affect Us Today. Boston: Beacon Press, 2017.

Levitsky, Steven, and Daniel Ziblatt. 2018. How Democracies Die. New York: Crown. 

Mayeri, Serena. 2011. Reasoning from Race: Feminism, Law, and the Civil Rights Revolution. Cambridge, MA: Harvard University Press. 

Mann, Thomas E., and Norman J. Ornstein. 2012. It’s Even Worse Than It Looks: How the American Constitutional System Collided with the New Politics of Extremism. New York: Basic Books.

McCann, Michael W. 1994. Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization. Chicago: University of Chicago Press. https://doi.org/10.7208/chicago/9780226555720.001.0001.

NAMI/Ipsos. 2025. Medicare/public opinion polling. NAMI/Ipsos.

Nord, Marina, David Altman, Fabio Angiolillo, Tiago Fernandes, Ana Good God, and Staffan I. Lindberg. 2025. Democracy Report 2025: 25 Years of Autocratization – Democracy Trumped? University of Gothenburg: V-Dem Institute. https://www.v-dem.net/documents/60/V-dem-dr__2025_lowres.pdf.

Pew Research Center. “Race, Ethnicity and Campaign ’08.” January 17, 2008. https://www.pewresearch.org/social-trends/2008/01/17/race-ethnicity-and-campaign-08/.

Quadagno, Jill. 1994. The Color of Welfare: How Racism Undermined the War on Poverty. New York: Oxford University Press. 

Reynolds, P. Preston. 1997. “The Federal Government’s Use of Title VI and Medicare to Racially Integrate Hospitals in the United States, 1963 through 1967.” American Journal of Public Health 87 (11): 1850–58. https://doi.org/10.2105/ajph.87.11.1850. 

Ritter, Gretchen. 2006. The Constitution as Social Design: Gender and Civic Membership in the American Constitutional Order. Stanford, CA: Stanford University Press.

Rosenberg, Gerald N. 1991. The Hollow Hope: Can Courts Bring About Social Change? Chicago: University of Chicago Press.

Savage, Charles. 2007. Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy.

Scalia, Antonin. 1998. “Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws.” In A Matter of Interpretation: Federal Courts and the Law, edited by Amy Gutmann, 3–47. Princeton, NJ: Princeton University Press. 

Smith, David Barton. 2005. “Racial and Ethnic Health Disparities and the Unfinished Civil Rights Agenda.” Health Affairs 24 (2): 317–24.

Smith, Tom W., and Paul B. Sheatsley. 1984.  “American Attitudes toward Race Relations,” Public Opinion 7 (October/November): 14–15, 50–53.

Smith, Rogers M., and Desmond King. 2014. “Racial Policy Alliances and the American Presidency.” In The Oxford Handbook of the American Presidency, ed. George Edwards and William Howell. New York: Oxford University Press. 

Smith, Rogers M., and Desmond King. 2024. America’s New Racial Battle Lines: Protect versus Repair. Chicago: University of Chicago Press.

Stephanopoulos, Nicholas. 2017. “The Causes and Consequences of Gerrymandering.” William & Mary Law Review 59: 2115.

Superfine, Benjamin M. 2013. Equality in Education Law and Policy, 1954–2010. Cambridge: Cambridge University Press. https://doi.org/10.1017/CBO9781139583749.

UpONE Insights/FFYF. 2025. Head Start/public opinion polling. UpONE Insights/FFYF.