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

Guest Blogger

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

Stephen Skowronek

This post continues and completes my responses to comments in the Balkinization symposium on my book The Adaptability Paradox.

Democracy: The Adaptability Paradox argues that what we have yet to create, and what we desperately need, is a strong constitution capable of supporting a fully inclusive democracy. (TAP: x, 236) This is not the standard view of the problem of democracy in America. The standard view is far more focused on the limitations of our democracy than on the limitations of our Constitution. The emphasis has been on democracy’s uneven progress, on its incomplete realization, and on overcoming its still-potent adversaries in American culture and politics. I did not write this book to take issue with the standard approach. In fact, the insights it has generated are integral to my analysis. But I don’t think that all of democracy’s problems can be solved by more democracy. I shifted the focus to the impact of democratization on the Constitution because I think that the constitutional problem of managing conflict and supporting democracy often gets lost in “bottom-up” treatments.

Some are uncomfortable with this shift in focus. Emily Zackin thinks that I am “blaming inclusion” for “blowing up” the Constitution when I should “lay the blame” at the feet of those who opposed it. I knew going in that some readers might find the approach I adopt in this book unduly detached from the highly charged issues it grapples with (TAP: ix), but this reading is over the top. I am not “blaming” inclusion. I am not suggesting that democratization was ill-advised or unwarranted or mistaken in any way. My claim is that inclusion had profound consequences for our constitutional system. Expanding rights in the 1960s broke the federalism barrier. In respect to both rights and structure, it tested the ordering capacities of our Constitution. The blame game is a distraction from a candid examination of the results of that test. I harbor no nostalgia for the constitutional arrangements that the rights revolution upended and transformed. Nor do I have any sympathy for the new politics of exclusion (aka “backsliding”) that has taken hold in recent years. I am raising questions that I think all committed democrats would do well to consider: Is this Constitution still serviceable for the democracy we have become?  Will “more democracy,” by itself, suffice to make it work better? Why can’t we find another mutually acceptable formula for governing?

My thesis is not, as Emily would have it, that we have had “too much” adaptation. I agree with her that we have not “had enough” to support a fully inclusive democracy. Indeed, that is my point. We have been waiting for some fifty years for that old ace in the hole to reveal itself once again, and the problems of governing this more inclusive democracy have only deepened in the interim. My concern is whether an adaptation of that old instrument for this purpose is still in the cards.

I have always been skeptical of the choice between a top-down and a bottom-up perspective. This book looks both ways. As Richard Pildes says, it eyes “the relationship between institutional structures and political culture.” I give special attention to how this relationship has changed in America over time. At its darkest, the book wonders whether direct engagement with the diversity of the American people in full is more than this Constitution can handle. The speculation is that at a certain threshold of inclusion, it may become impossible for Americans to reestablish a common sense of that old instrument. The authority to say what is essential to it and what is consistent with it may dissipate.

My response to this problem is not that we should roll back our democracy. It is that we should reconsider our Constitution. (Rogers Smith’s comment goes further, suggesting that we reconsider the sovereignty of nation-states more generally.) At a dinner a while back, Sandy Levinson asked me whether I thought that Madison has been proven wrong and that Montesquieu was right after all. I hadn’t thought of it that way, but perhaps that is what we are witnessing. An “extended republic” may ultimately become so diverse that it fails in its original purpose, no longer providing the security needed by the interests it encompasses to get them to engage in a common project and make their national government work.

Emily is not alone. Elizabeth Beaumont too thinks I am targeting inclusion. I appreciate the queasiness. I share the unease. But I hope that readers will direct a share of their unease to the developmental dilemma I am trying to bring into view. That is what Andrea Katz does. Although Andrea says that I see “too much inclusion” as the problem, the thrust of her comment is quite attentive to the issues I am raising. Like me, she is worried that our confidence in American democracy may be fading. At the heart of that problem, she sees a lack of trust and a weakening of faith in American institutions – in “Congress, elections, and the basic legitimacy of outcomes.” The Adaptability Paradox draws out the connection between a people’s faith in their institutions and their trust in one another. It suggests that we won’t get anywhere if we don’t rebuild those linkages.

Andrea points to the reformers of the Progressive era as a model. So would I. Though many have (justly) criticized the Progressives for the limits of their democratic vision, those reformers did, to their credit, see clearly that greater inclusiveness must go hand in hand with a reconstruction of the Constitution. Both were necessary to create a stable and secure democracy for industrial America. I come down harder on the heirs to Progressivism, the “new class” of the 60s and 70s. I don’t criticize the new class for advancing the cause of inclusion. My beef is that they failed to give the same sustained attention to the other part of the problem: reconstructing the state in a way that might sustain their new democracy. Though their democratizing reforms were radically changing the conditions for constitutional government in America, the new class never came up with a coherent formula or and politically compelling program for reordering it. That shortcoming opened them up to escalating broadsides that charged them with undermining constitutional government. Worse yet, it allowed implacable opponents to seize for themselves the cause of restoring constitutional government. This was an elite failure, a failure to see that a fully inclusive democracy would not hold together by itself.

My emphasis throughout on reconstructing the state and inventing new management tools for American democracy may rub my friends on the left the wrong way. It may seem too top-down. But I wonder if we are not due for a reawakening of concern on the left for management tools and institutional intermediation. As the old song goes “you don’t know what you’ve got ‘til its gone.” After the rights revolution, the friends of democracy did not just discount the importance of party management and administrative management; they actively contributed to the drive to hollow those tools out. More than that, they failed to generate new intermediaries potent enough to take their place. Their ambivalence toward the state left their new democracy vulnerable.

I am all for “institutional designers,” like Richard Pildes, who put institutional reform and a reconfiguration of political processes front and center. Ideas about how to fix the state are now proliferating rapidly. Still, we have yet to do what the Progressives did. Our commitment to a new state for a new democracy has yet to be coupled to a potent social movement for good government. Short of that, I fear that current efforts to rethink our institutional arrangements will remain scattered, and that rather than guiding collective action, they will remain talking points.

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Scope and Causation: As Andrea observes, Trumpism has exposed the fragility of our democracy and the immediacy of the threat to basic constitutional protections. Our constitutional problem has become glaring. The Adaptability Paradox does not pay special attention to Trump, but it does try to make sense of this shocking new reality. To that end, the book zeros in on the politics of constitutional adjustment and its prior history.

For several of the commentators in this symposium that focus seems too narrow to account for the situation at hand. Jeremy Kessler asks: what about capitalism? Rogers Smith asks: what about empire? Richard Pildes asks: what about the churning dissatisfaction evident across Western democracies regardless of their institutional structures?

There are indeed many different factors one might consider in accounting for the current predicament. I lay claim to one largely unattended piece of the puzzle. Moreover, I believe that my explanation has special value if Americans are going to do something constructive about the predicament in which they find themselves. Wider frames of analysis may absorb, even dissolve, the concerns raised in this book, but they can also absolve us of responsibility for taking a closer look at ourselves and the problems we as a people will have to overcome.

Giving that point a different twist, I would also suggest that dwelling on the global forces in which we have gotten caught up can be incapacitating. Conversely, recovering America’s long history of constitutional reinvention can be empowering. Note that, though of some commentators in this symposium take issue with my analysis as too “top down” and too cynical about democracy, Jeremy scores it for its “voluntarism” and “idealism.” I was also struck in this regard by Richard’s confession that he remains “of two minds” about the culture-and-institutions approach. I take heart from that ambivalence. I wonder Richard he persists in his own work of conjuring new institutional designs, because he too recognizes that, as a practical matter, solutions are likely to come from actions taken by people in particular places working through institutional and cultural contexts with histories of their own.

Instead of presenting America as just another case of a worldwide churning, I choose quite deliberately to offer a different set of comparisons. That puts me on a separate page, but I don’t think it reads me out of the bigger stories. I would suggest that my more parochial comparisons back to earlier periods in American history are not without significance for those, like Richard, who juxtapose them against a more cosmopolitan view. As it happens, I recently sketched an argument along those lines in another forum, one that Richard hosts.[1]

Why, we might ask, does the United States now seem to be leading the world-wide slide into more authoritarian styles of rule, when it resisted a similar slide in the 1930s? The simple answer is that America in the 1930s happened to be led by a president committed to democracy’s advance. But on inspection, the answer is anything but simple.

At the outset of his second term, Franklin Roosevelt opened a multifront assault against the institutional constraints on presidential power. He proposed to subordinate the judiciary to presidential will, to build a personal party based on loyalty to his program, and to extend his control over the administrative power created by his New Deal. These proposals were all of a piece, architectural elements of a reordering that would displace the Constitution’s multipart, power-sharing scheme with presidentialism. Point for point, they were not all that different from Trump’s designs. And yet, in that earlier episode defenders of the Constitution in both parties coalesced against Roosevelt. They renounced him as a dictator and soundly defeated all three of his initiatives.

That answer, however, is too simple also. The sobering fact is that those faithful constitutionalists of the 1930s were not resisting presidentialism on behalf of democracy. At the heart of the coalition that defeated Roosevelt were southern racists determined to shield authoritarian forms of rule in their home states from what they saw as the threat posed by unbridled presidentialism. It might not be too much to suggest that the United States sidestepped the risks of strongman rule in the 1930s only because authoritarianism was so deeply entrenched at the local level and so strongly protected by the Constitution’s structure.

The irony goes deeper still. The resistance those racists mounted to the strong arm of presidentialism in the 1930s ushered in a set of compromises that advanced democracy on other fronts. The new state that took hold in the 1940s not only confirmed the Constitution’s multipart, power-sharing design, it was also more pluralistic in its social reach and inclusive in its operations. It is only now, with the exclusions that supported that settlement uprooted, that presidentialism has been unbridled in the U.S. All this adds up to a distinctly American paradox, one that will likely require a distinctly American response to the puzzle it poses.  America’s democratization abetted the rise of presidentialism, and the rise of presidentialism has exposed American democracy to the risks of backsliding.

Jeremy takes a different tack. He sees my focus on democratization as begging the question. Behind democracy’s advances Jeremy sees the relentless demands of capitalism, in particular, of its demand for free labor.

On this point, I am the one “of two minds.” There is no denying that these successive settlements were serviceable for the advance of capitalism. I think that Jeremy is correct that a good part of the reason American “society” “selected” to supersede prior governing arrangements in the ways that it did is to be found in the demands of an evolving private economy. But I am less convinced that capitalism accounts for the advance of democracy. That seems to me overly deterministic and unduly functionalist. The democratizing impulse is not epiphenomenal. It has been a demonstrably powerful force for change in its own right. In the U.S – where “get-your-knee-off-my neck” is something of a founding precept – it has persistently, and of its own accord, demanded a reordering of the state. Moreover, that impulse has, as often as not, been directed against major corporate interests. It required attention, and it took new settlements hammered out by elites to tame it.

Elite taming figures prominently throughout The Adaptability Paradox, and the book treats it in ways that speak in its own voice to issues raised both by both Jeremy and Rogers. Political economy was, as I present it, the primary preoccupation behind the Constitution’s initial framing. The notables of the eighteenth-century America came together to fashion a government that would be able to address their common concerns with commerce, finance, security, and expansion, all the while tamping down threats to those shared interests. (TAP: 38). The objective, dare I say the Constitution’s aspiration, was to create and sustain a great commercial empire. A republican structure was erected to elicit support for that project by inviting participants to contend over how exactly it should be realized.

Each successive settlement, like the original, managed to keep that overarching ambition at the forefront and to suppress issues and interests that might derail it. Time and again when the shared agenda was threatened, elites were able to turn the national discussion back to issues the Constitution had been designed to deal with: trade, banking, currency, the scope and integration of markets (TAP: 51, 81, 105-6). Empire and corporate power were persistent and controversial agenda items, but they were not deal breakers. Race was the historic deal breaker, and it was persistently suppressed in order to get on with business. Engineering a settlement that would enlist industrial labor in a political economy of “growth” took far longer than earlier challenges, and it entailed a far more comprehensive reorganization, but through the New Deal, an expanding pool of participants found ways to come together behind the development of the commercial republic.

With the rights revolution, however, a different set of issues surged to the forefront. These were the issues of social justice, issues the Constitution had been designed to keep under wraps. They laid bare the polity’s deepest social divisions, and rather than deal with them effectively, the Constitution was left to quake under the pressure of unresolved turmoil. Near the end of his comment, Jeremy points to the new constitutional formalism as another formula “functional enough” to meet the evolving demands of capitalism. I wonder. Can American capitalism work without an equally functional formula for making America’s democracy work?

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Pathways or What is to be done? Rogers Smith and Nikolas Bowie both respond to the problems plaguing constitutional democracy in America today with a call to rethink the possibilities of federalism. Each teases something different out of federalism, but both see in it something more than a way of protecting status hierarchies and filtering out uncomfortable social issues. They treat it rather as a democratic instrument for moving America beyond the current impasse.

Rogers’ federalism is expansive. It looks beyond power relationships structured between the state and national governments of the American constitutional system. Rogers eyes a variety of arenas in which the federalism principle might be applied to break the imperial will to expand  and dominate and to foster instead the self-determination of peoples: greater autonomy for native groups, cooperative partnerships with other nations, a revival of international organizations that foster greater self-sufficiency among the nations of the world. The attractions of Rogers’ expansion of the federalism principle are palpable. But as he acknowledges, an adaptation along these lines is a daunting challenge, both politically and constitutionally. A movement in this direction would require, among other things, a radical rethinking of the sovereignty of nation states, a hitherto unrealized degree of tolerance for difference and diversity, and a cultivation of norms of reciprocity far beyond their current expression. Rogers offers a programmatic guide for further democratization, but the movement needed to advance his program is nowhere in sight.

Nikolas’ federalism is less a programmatic guide for action than an instrument for collective discovery of a program. He urges the use of state-based constitutional conventions as vehicles for mobilizing people around the question of what their government should look like and for rediscovering through institutional deliberation agreeable rules for governing. The states of our federal system would in this way become once again the site of demonstration projects “showing the rest of the country how transformations that might seem radical can be folded within the American tradition.” Nikolas takes today’s progressives to task for their skittishness about constitutional conventions and for placing too much faith in courts for protection. His proposal is refreshingly straightforward both in suggesting a way to overcome our lack of trust in the democratic process and in suggesting a way in which a larger social movement for good government might begin to form. The current distribution of power at both the state and national level also cautions that Nikolas’ proposal is ripe with hazard. The likely result, at least in the short term, is wide variation in the rights available to people in different states. But as he reminds us, democracy is doomed if its advocates are no longer willing to accept the risks that come with it and use the democratic processes at their disposal.

Nikolas’ prescription resonates more broadly with current interest in civic constitutionalism. Elizabeth concludes her comment on just that note. Civic constitutionalism addresses itself directly to the imposing challenges of rebuilding faith in our constitutional democracy. It too turns away from courts and looks to the people themselves to recreate a common sense of constitutional government. The idea is that a shared purpose can be rediscovered through the people’s active engagement with the institutions of democracy.

Count me in on this one. Something along these lines is likely essential if we are to build a strong constitution capable of supporting a fully inclusive polity. A committed Deweyan myself, I see in civic constitutionalism a kindred solution to the problem of the public. But just as civic constitutionalism acknowledges what we have lost, the recovery it promises is a long-term proposition. Examining the unfamiliar ground on which we now tread, I am not sure time is on our side.

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.