Has American Democracy Outstripped Its Constitutional Accommodations?-- Part One

Guest Blogger

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

Stephen Skowronek 

            I want to thank Jack Balkin for hosting this symposium on The Adaptability Paradox and to convey my gratitude to the nine scholars who participated. These are all serious and probing commentaries on the book’s themes. No author can ask for more than that.

The commentaries are very different from one another, and they range over a wide field of pertinent concerns. Each deserves a thorough and fully considered response. But even my effort here to touch on a few of the issues that come up recurrently in the commentaries goes on too long. At the risk of trying patience, I will address four.  One has to do with my conception of the relationship between order and change; another, with the book’s disposition toward democracy and democratization; a third, with scope conditions and questions of causation; and a fourth with pathways out of our current predicament.

My responses will appear in two installments. This first post reclaims the ground the book carves out for itself and takes up questions raised about order and change. The next will address the three other areas of interest.

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The Adaptability Paradox asks: “Has American democracy outstripped its constitutional accommodations?” (TAP: vii, ix, 3) It argues that there is reason for concern.  Popular sovereignty is the Constitution’s first and most democratic principle, but for the first 180 years of the Constitution’s development, that principle was sorely compromised by extensive social exclusions. Over the course of our history, democratization repeatedly drove constitutional change.  Institutions were periodically reordered to accommodate a more diverse range of participants and to manage relations among them.  These adaptations entailed an expansion of rights, a relaxation of structural constraints, and the invention of new tools for ameliorating conflict and making a more diverse democracy work. The book interrogates this mode of development for insight into the problems surrounding constitutional democracy in America today.

It lights on a paradox. “We the People” finally became a creditable description of the foundation of American government and politics in the 1970s. But no sooner did the Constitution approach full inclusion than its historic capacity to regenerate firm footings for government and ameliorate conflict began to dissipate. Full inclusion exposed the Constitution’s ambivalence toward democracy. With the nation’s deepest social divisions laid bare, the conflicting purposes harbored by the government’s complex frame were drawn out. Over the past half century of development under conditions of full inclusion, we have not, I contend, seen the various parts of that frame sort themselves out again in an authoritative way, nor have the adjustments made provided a sturdy platform for managing the conflicts now in play.  Instead, we have witnessed a gradually accelerating shakedown of authority, a concomitant erosion of constitutional resilience, and a gathering threat to American democracy itself. Expanding rights and easing constraints facilitated democratization, but that old dynamic has brought us up short. It has left us in a state of high anxiety in which no one can discount the importance of who is next in charge. In that very basic sense, it has confounded the whole idea behind the Constitution’s design.

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Order and Change:  Sandy Levinson casts the problem as one of false expectations: “We as a society envision the Constitution as the foundation not only of unity, but also of stability through time.” I agree with Sandy that this faith in the Constitution’s binding capacity, though deeply ingrained in American political culture, conceals a more troubling reality. The Adaptability Paradox fixes its attention on this cultural conceit. It seeks to set expectations more realistically and to bring our current predicament into sharper relief.

To that end, it reexamines the modicum of unity and stability that was, in fact, repeatedly regenerated through the Constitution over the course of American history. Much of The Adaptability Paradox is devoted to relocating this developmental gyroscope. It breaks its common identification with the Constitution’s formal design and directs attention instead to rearrangements that, from time to time, altered and relaxed it. These contingent settlements were improvised by different sets of participants for their own time-bound purposes. Fashioned around the Constitution, these adaptations changed the way conflicts were ameliorated, the way participant’s interests were protected, and the way instrumental pursuits were supported.

Noah Rosenblum and Elizabeth Beaumont both raise questions about the weight I assign to these “settlements.” As they see it, little about American democracy was ever settled. There was always “pushback” and “backlash. “Dissensus” has been the rule. Contestation has driven political change more or less continuously, each apparent settlement serving as fodder for the next round of conflict and change. I am not unsympathetic to this line of argument. After all, I am documenting the contingency of these constitutional settlements and their rise and fall. Admittedly, “settlement” might be too strong a word for the jury-rigged orderings we periodically constructed to bolster unity and stability and to keep the Constitution working. In fact, I state that case myself: “… amidst all the conflicts these adaptations were designed to manage and the near-constant challenges to those arrangements from those still left out, it is easy to lose sight of the relief they offered. American government has spent far more time in a state of becoming something else than as one thing or another.” (TAP: 34)

But if there are good reasons not to draw sharp distinctions between periods of order and periods of change, there are equally good reasons not to collapse the whole of our constitutional history into a continuous stream of contestation. The remarkable thing is not that conflict has always riddled this polity; it is that elites repeatedly came together to recreate manageable lines of political contestation and trustworthy rules for the government’s operation. These reconstructions were not incidental. Without them and the modicum of consensus they commanded, the Constitution would have shaken itself apart long ago, and now, when the Constitution appears to be shaking itself apart once again, we might want to think more carefully about how in the past it was put back together. As Noah and Elizabeth note, this history is a standing rebuke to formalist fetishisms and constitutional originalism. That old knack for reinvention was our ace in the hole, the key to the Constitution’s unique staying power.

But there is another reason to examine these settlements today. Each significantly altered constitutional relationships and governmental operations going forward. At the end of each round, rights were expanded and constraints were relaxed. That dynamic prompts closer attention to the cumulative effects of reordering, and it raises some timely questions about possible limits to this mode of development.  

Behind the question “has American democracy outstripped its constitutional accommodations?” is the sobering observation that this periodic reordering rested on extensive social exclusion. Developments since the rights revolution and the advent of full inclusion have put the question more starkly: Does successful adaptation of this Constitution require social exclusion? Elizabeth examines my argument closely on this point, and she assures us that it does not. She sees little in full inclusion that changed the game categorically, and, taking a cue from what I myself say about the contingent, always-contested character of earlier settlements, she points to the accommodation of African Americans as an instance of successful constitutional adjustment to the rights revolution. If we are searching for the source of current difficulties, she argues, we should look elsewhere, perhaps to more recent developments like 9/11 or changes in technology.

I remain unconvinced. Yes, the cause of Black civil rights commanded substantial political support. It scored major policy successes and ushered in major changes in government and politics. But my claim is not that the rights coalition failed to advance or expand. It is, in fact, important to my argument that once the civil rights movement broke through the structural barrier of federalism, the expansion of rights accelerated and the incorporation of once excluded groups quickly reached beyond rights for Black Americans. My claim is that the rights revolution expanded its social reach alongside an equally wide-ranging and revolutionary counterinsurgency. (TAP:114) Instead of mutual buy-in to a new arrangement of rights and structure, we got gridlock, confrontation, and polarization. The rights revolution raised a pointed question about the historic relationship between successful adaptation and social exclusion, and as I see it, the response has done little to allay concerns.

Elizabeth tallies up gains for the civil rights coalition and calls it consensus. Previously, however, reordering did more than score policy wins for one side of a sharply contested field. For better or worse, earlier adaptations found ways to placate the most potent political opponents of the transformation under way. New arrangements were crafted in ways that assured both sides of the contest that their vital interests could still be protected. In this regard, the “legacy of losing” [1] for Barry Goldwater in 1964 was significantly different from the legacy of the losing populists of 1896, or the losing South of 1865, or the losing nationalists and nullifiers of 1833, or the losing Anti-Federalists in 1789.  In each of those earlier cases, those whose resistance failed to stop the reconstruction found their interests sufficiently accommodated in the new ordering to buy in to it. Instead of maintaining a hard line against it, they began to participate in its further development. The Goldwater insurgency, in contrast, did not resolve itself in a modus vivendi among the principal combatants. It was only momentarily submerged by the Johnson landslide. It was not extinguished, or bought off, or absorbed. Those insurgents never bought in. Instead, their insurgency metastasized. A tug of war was already apparent in the Nixon administration. With the rise of Ronald Reagan, the government’s rules of operation grew even more unsettled, and the lines of political competition became even less accommodating.

Consider just one example of the constitutional response to this democratic breakthrough: the rise of a “unitary theory” of the executive. The “unitary executive” wraps a constitutional claim of presidential authority in a populist rendering of political legitimacy. It does not anticipate consensus or promote buy-in. It is not a power sharing arrangement. It is a constitutional answer to a political standoff. The theory opens a broad field for unilateral action, allowing presidents to try muscling a set of preferences through in the face of stiff resistance. This theory did not emerge from 9/11, or from later-day globalization, or from an immigration crisis, or from the age of the internet and social media. It was the work of the Reagan administration, part of the broader reaction to changes set in motion by the rights revolution. Recent scholarship has pushed its origins back even farther, to the Nixon and Carter administrations, each vying from opposite sides of the political spectrum to control civil rights policy.[2]  Sandy sums up the point in his commentary: “The present “democratic decline” should be dated from 1970 or so, when, for the first time in our history, one might plausibly describe the United States as a “democracy.” And much of American politics should be understood as the bitter conflict between those who applauded the developments of the 1960s and those determined to resist them, and, if possible, to roll them back.” 

I have taken a lot from Elizabeth’s popular, “bottom up” view of constitutional development, but here I am led to wonder why bottom up gets discounted when the popular energy comes from fierce opponents of democracy’s advance. In building her case that the rights coalition secured a new order before conservatives began pulling it apart, Elizabeth seems more wedded than I am to the old paradigm juxtaposing periods of order to moments of change. My analysis anchors reordering in structural changes in institutions – changes in our political parties, in administrative management, in each of the three branches of government and in relations among them. I catalogue the institutional adjustments engineered by actors on both sides in the political contest over the rights revolution. These changes followed close on the heels of the democratic breakthrough (they all date to 1970s), and collectively, they reconfigured the state in ways that did more to exacerbate political conflict than to ameliorate it, more to magnify stress on the Constitution than to ease it. This evidence seems to me too weighty to shove aside or to pass off to later developments.

Stephen Skowronek is the Pelatiah Perit Professor of Political and Social Science at Yale University. You can reach him by e-mail at stephen.skowronek@yale.edu.