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.
So described, Skowronek offers a distinctively American
complement to the burgeoning comparative literature on tensions between inclusivity
and liberal democracy.[1]
Others will undoubtedly take up the normative implications of this framework,
implications that Skowronek himself flags as troubling in the Preface (pp.
ix-x). I wish instead to question Skowronek’s empirical assumption that the
underlying cause of “the adaptability paradox” is democratization.
Cashed out as inclusive nationalization, democratization is definitionally
destabilizing. The very telos of the historical process posited by
Skowronek is the transcendence of the particularisms, localisms, and exclusions
that stabilized earlier constitutional settlements. But why would a
society select for its own supersession in this way?
There are many potential answers to this question, but
Skowronek’s attribution of explanatory primacy to democratization suggests an
idealist or a voluntarist one. The idealist answer: a normative preference for
inclusion has characterized American political culture from the outset,
notwithstanding formal and informal efforts to forestall the result. Respect
for that inclusive ideal gradually undermined old exclusions and transferred
power to national auxiliaries to manage the growing diversity of the polity.
The voluntarist answer: the causal power of democratization is really just the
causal power of a recurring coalition of out-groups excluded from earlier
constitutional settlements and those in-group members who embraced the moral
and practical rewards of accommodating new bids for inclusion. Each of these
answers, however, is almost as question-begging as the text’s explicit stipulation
of a transhistorical drift toward inclusive nationalization. Whence the
commitment to, and causal power of, the inclusive ideal? What explains the
regularity with which out-groups and inclusionary in-group members overcame the
resistance of in-group factions committed to exclusion?
One non-question-begging answer to the question of why American society continually and successfully dug up its moorings in the interest of inclusion is puzzlingly absent from Skowronek’s account: the development of capitalism between the Founding and the present day. Capitalism is an engine of inclusion in that it subjects an ever-greater share of the population to market dependence. Once market dependence becomes a universal condition within a given society, all members of that society enjoy the equal right (if not the equal capacity) to sell and buy labor power. But capitalism is also an engine of exclusion, insulating from legal and political contestation a novel social hierarchy: the one that subordinates the many who control only their own labor power to the few who control all other means of production. Between the seventeenth and twentieth centuries, this distinctively capitalist dynamic of inclusion and exclusion gradually emerged, driven by the interaction between technological innovation and class struggle.[2] It is that interactive, material process which provides the explanatory ballast that Skowronek’s account lacks. Or so the remainder of this Response will try to demonstrate.
1) The Founding
The constitutional settlement of
1789 testified to a commercially sophisticated society whose economic base
nonetheless lay in freehold agriculture – that is, family-owned farms that
produced most of the goods needed for their own reproduction. A significant
percentage of those farms, especially larger ones in the South, relied on the
purchase of enslaved persons for both subsistence and market production. Some
non-slaveholding farms also relied on wage labor, mainly for market production.
Regardless of their dependence on enslaved or waged labor, freeholders
generally supported the use of organized violence to dispossess Native polities
of the land necessary for settler expansion. Overall, the country’s predominant
economic sector – agriculture – was characterized by highly uneven integration
into national and international markets. Merchants and artisans were more
dependent on these markets, but only occasionally for wage labor. In general,
wage labor was viewed as a state of dependency little better than enslavement and,
in most states, the propertyless could not vote or hold political office.
Governing would be the business of an alliance of the largest landowners and
merchants.[3]
In the decades following
ratification, a spate of technological innovations, including the cotton gin, the
steamboat, canal and turnpike infrastructure, interchangeable-parts
manufacturing, and early textile machinery – had a
complex effect on the balance of class forces. The economies of scale enabled
by new technology meant even greater social power for the biggest merchants,
artisans, and slaveholders. But these very economies also spurred demand for
both waged and enslaved labor. This increasingly dynamic if unequal society
gave rise to what Skowronek calls the “party state.”[4]
2) The Party State
The party state superintended a
society that was increasingly saturated by both commerce and industry yet
persistently disdainful of wage labor. The majority of voters still possessed
their own farms and firms, even as a growing percentage had to shoulder debt to
do so. Freehold agriculture still dominated the agricultural sector, even as a
growing percentage of that sector’s yield depended on slave labor. An alliance
of small farmers, artisans, and slaveholders undergirded both Jefferson’s
Republican Party and, a few decades later, Andrew Jackson and Martin Van
Buren’s Democratic Party. Their chief opponents, whether Federalist, National
Republican, or Whig, viewed industrial and financial innovation, rather than
agricultural and artisanal independence, as the key to sustained national
prosperity and power. Despite this deep socio-economic division, the party
state proved relatively stable because of the relations of production it
managed, with great effort, to depoliticize. The formal validity of Southern slavery
was not to be questioned, even if the geographical reach of the South was
subject to debate. The social propriety of wage labor was not to be endorsed,
even as the population of wage laborers, especially foreign-born laborers in
Northern cities, ballooned. The dominant political coalitions also supported
the continuing disruption of Native relations of production and expropriation
of the land on which those relations depended. In this way, the party state
facilitated the commercialization of the nation and the industrialization of
the North precisely by deferring the violence that these trends made all but
inevitable: the reconstruction of relations of production along fully
capitalist lines.[5]
Ultimately, Black resistance to
enslavement tipped the balance by stymying Southern industrialization. Although
plantation agriculture was more productive than earlier generations of
historians thought possible, slave-based industry was incompatible with the
form of social control that slaveholders already struggled to impose within the
confines of the plantation. Nor could slaveholders ask non-slaveholding whites
to reduce themselves to the status of wage laborers without jeopardizing the
cross-class racial alliance that held the South together as a political power.
These material and ideological factors deprived the South of an industrial base
capable of competing with the North electorally, economically, or militarily in
the medium term. In the late 1850s, a new alliance of Northern Whigs,
Democrats, and abolitionists embraced this state of affairs. They did so not by
calling for the immediate abolition of Southern slavery but by reimagining the
relationship between industrialization and freeholding. Industrial and
independent production were not antagonistic interests, Lincoln’s Republicans
implied, but a political economic whole bound together by railroads, westward homesteading,
and the social mobility – rather than the dependency – afforded by wage labor.
This novel material and ideological synthesis shattered the party state,
structured abolition, and paved the way for Skowronek’s second
extra-constitutional auxiliary: the administrative state.[6]
3) The Administrative State
The administrative state was – and to a significant extent
remains – the institutional expression of both the normalization of wage labor
and the corporate concentration that accompanied it. Those changes in the
relations of production were themselves favored by the technological
innovations of the second industrial revolution. As such, the administrative
state to this day mirrors the organizational logic of industrial capitalism,
including its hierarchies of principal-agent relationships, its tendency to
conceive of society in terms of interest-group pluralism, and its preference
for synoptic decision-making. What made any of this democratic always has been
a bit obscure, just as economic democracy remained a left-leaning reform
program rather than a lived reality. But the administrative state did work to
facilitate the inclusion of ever more of the national population into relations
of market dependence, and to mediate conflicts arising at the intersection of
formal equality and material subordination.[7]
Pace Skowronek, this project was only occasionally at
cross-purposes with the mid-century rights revolution, which insisted upon
formal equality for those still excluded from the market while also targeting
various forms of material subordination. Rights reformers did have to confront
sectors of the administrative state that remained captured by local and
particular partisans of exclusion. And reformers’ most ambitious sallies
against the material subordination of wage workers were bound to come to naught
absent a truly social revolution. But, for the most part, mid-century rights
reformers and federal administrators inhabited the same possibility space,
circumscribed as it was by the geostrategic struggle between capitalism and
communism. At least on the home front, that struggle favored both greater
formal equality and modest alleviations of material subordination.[8]
What ultimately destabilized the administered society of
mid-century America, then, was not the imperative of inclusive nationalization.
A slowdown in industrial productivity during the mid-1960s launched a new wave
of technological innovation and class struggle that crashed across the borders
of the nation-state itself. Although this wave did not by any means wash away
the administrative state, it overwhelmed the capacity of Skowronek’s second
extra-constitutional auxiliary to manage an era of almost unbounded social
rivalry.[9]
4) Constitutional Formalism and Informational Capitalism
Between the late 1970s and the early 2000s, computerization,
containerization, and financialization helped to restore both productivity and
profitability. Each of these developments pushed against the physical
boundaries of the nation-state, favoring ever greater capital and labor
mobility. Partly for that reason, the restoration of productivity and
profitability came at a significant cost to the administrability of American
society. Whatever the pressure that inclusive nationalization had placed on
social bonds, globalization foreclosed the possibility of a complete
identification between polity and population – that is, the increasingly
transnational mass of wage laborers who powered the American economy. As for
the significant subset of that population that encompassed citizens and lawful
residents of the United States, they experienced a greater degree of formal
equality than ever before but also an unexpected and disorienting increase in
material inequality. The promise of informational equality, whether articulated
in terms of access to education or to digital infrastructure, sought in vain to
bridge the growing gap between the formal and the material. Yet the new
politics of information reflected, even if it could not meaningfully alter, a
real state of affairs: one in which the commodification of an ever-greater
share of society, a longstanding imperative of capitalist development, was now
being accomplished by the translation of an ever-greater share of society into
exchangeable packets of digital information. The Great Recession revealed that
even recent efforts to revive “the ownership society” had rested more on
speculative information flows than on concrete foundations.[10]
Against this socio-economic backdrop, the substitution of constitutional formalism for more deeply-rooted, extra-constitutional coordinating mechanisms makes a good deal of sense. On the one hand, the premise that growing social fragmentation, alienation, and enmity can be resolved by recourse to constitutional text and principle is obviously false. On the other hand, the commitment to constitutional text and principle offers an at-least-rhetorically democratic gloss on the increasingly thin ties that do still bind together American society: the relatively equal right to buy and sell labor power; the relatively equal capacity to access the digital pubic sphere (and to have one’s ideas and desires commodified in doing so). In this way, constitutional formalism connects the lived reality of informational capitalism to the old fantasy of democratic participation and control. Unlike earlier extra-constitutional auxiliaries, constitutional formalism tends to exacerbate rather than mitigate social rivalry, reflecting the ceaseless and mistrustful churn of a society submerged by the market. Yet, at least for the time being, constitutional formalism serves to bless this state of affairs as a democratic work-in-progress rather than a moral cataclysm. Perhaps that is functional enough for the purposes of capitalist development, the trajectory of which appears to lie beyond American shores and their ostensibly democratic horizon altogether.[11]
Conclusion
If this Response takes Skowronek to task for neglecting the
material foundations of American constitutional development, its focus on those
foundations can itself be taken to task for yielding no prescriptions half as
plausible as Skowronek’s own. As Skowronek notes, there are indeed
institutional rivals to constitutional formalism, including a formally
exclusionary populism (pp. 232-233), a more inclusive majoritarianism grounded
in the recovery of legislative and administrative flexibility, and a substantively
ambiguous revival of natural law as the basis of constitutional government.[12] Perhaps
the fact that each of these alternatives enjoys only a modest social base can
compel investment in “alternative means of interpersonal communication” and
“new forms of social capital” that will, eventually, undergird a more durable constitutional
settlement (p. 235). Given that such investment is consistent with the logic of
informational capitalism itself, Skowronek’s vision of a path forward is
certainly plausible. Yet that very plausibility may indicate a political cul-de-sac.
If what Skowronek calls the “constructive social sensorium” (p. 236) is little
more than the institutional reflection of the trajectory of capitalist
development, it would be understandable if many Americans no longer wished to
dwell within it.
Jeremy Kessler is the Stanley H. Fuld Professor of Law at
Columbia Law School. He can be reached at jkessler@law.columbia.edu.
[1]
For a prescient overview, see Martin Schain, The Comparative Politics of
Immigration, 44 Compar. Pol.
481 (2012).
[2] Jeremy Kessler, Law and Historical Materialism,
74 Duke L.J. 1523, 1535-1537
(2025); Jeremy Kessler, The Origins of “The Rule of Law”, 87 L. & Contemp. Probs. 1, 4-16 (2026); Jeremy
Kessler, Does Law Constitute Society?, 88 L. & Contemp. Probs. 60, 65-69 (2026).
[3]
1 John Ashworth, Slavery, Capitalism,
and Politics in the Antebellum Republic 25–30, 70–73 (1995); Ned
Blackhawk, The Rediscovery of America 8–15, 233–40
(2023); Emilie Connolly, Vested Interests
17-40 (2025); Joseph Fishkin &
William Forbath, The Anti-Oligarchy Constitution 24-32 (2022); John Lauritz Larson, The Market Revolution
in America 4–7, 22–26 (2010); Jonathan Levy, Ages of American
Capitalism 46–50, 64–67 (2021); Claudio Saunt, Unworthy Republic
3–9, 71–78 (2020); Christopher Tomlins, Freedom
Bound 461–65, 506–10 (2010); Maggie Blackhawk, The Constitution
of American Colonialism, 137 Harv. L.
Rev. 1, 3-10 (2023).
[4]
1 Ashworth, supra note 3, at
30-32, 73-76; Connolly, supra note
3, at 88-96, 118-25; Larson, supra
note 3, at 31–45, 60–68, 87–95.
[5]
1 Ashworth, supra note 3,
at 289-492; Fishkin & Forbath,
supra note 3, at 45-52; Connolly,
supra note 3, at 167-172. While Ashworth’s work on the material
foundations of the second party system has not been surpassed, more recent
histories of slavery and capitalism tend to embrace a looser definition of
capitalism, more indebted to Keynes and Polanyi than Marx. Levy, supra note 3, at 5-9,
14-18; Slavery’s Capitalism 1-6,
10-12 (Sven Beckert & Seth Rockman eds., 2016); Walter Johnson, River of Dark Dreams 4-7 (2013). In doing
so, this newer work underplays the causal ties that bind together technological
innovation, the commodification of labor power, and sustained, intensive
productivity growth. The result is a misleading sense of institutional and
material continuity across time periods and regions, and a surprising reliance
on individual and collective choice as explanatory factors when discontinuities
are acknowledged. Stephanie McCurry, Plunder of Black Life, Times Lit. Supp. (May 19, 2017),
https://www.the-tls.co.uk/articles/slavery-economics/; James Oakes, Capitalism and Slavery and the Civil
War, 89 Int’l Lab. & Working-Class Hist. 195
(2016); Charles Post, Slavery and the New History
of Capitalism, Catalyst
(Spring 2017), https://catalyst-journal.com/2017/11/slavery-capitalism-post;
supra note 2 (collecting sources).
[6]
2 John Ashworth, Slavery, Capitalism, and
Politics in Antebellum America 1-10, 76-172, 628-649 (2007); Richard Franklin Bensel, Yankee Leviathan 1–5, 356–60
(1990); Fishkin & Forbath, supra
note 3, at 89-97; Eric Foner, Free
Labor, Free Soil, Free Men 11-39, 261-300 (1971); Matthew Karp, This Vast Southern Empire
3–8, 52–60, 134–42 (2016). While James Oakes, like Ashworth, credits Black
resistance, the former situates that resistance within a broader regime of
biracial antislavery politics that independently forced the South’s hand. James Oakes, Freedom National 7–10, 285–90 (2013).
[7]
Brian Balogh, A Government Out of Sight 3–7,
229–35 (2009); Daniel R. Ernst, Tocqueville’s
Nightmare 1–4, 87–92 (2014); Thomas Ferguson, Golden Rule 272-280 (1995); Naomi R. Lamoreaux, The Great Merger Movement in American Business,
1895–1904, at 1–3, 83–90 (1985); Levy,
supra note 3, at 295–303, 405–12;
William J. Novak, The New
Democracy 1–6, 157–65 (2022); Martin
J. Sklar, The Corporate
Reconstruction of American Capitalism, 1890–1916, at 1–8, 176–85
(1988); Olivier Zunz, Making
America Corporate, 1870–1920, at 1–5, 9–15 (1990);
Jeremy Kessler, The Struggle for Administrative Legitimacy, 129 Harv. L. Rev. 718 (2016); Jeremy Kessler
& Charles Sabel, The Uncertain Future of Administrative Law, Daedalus (Summer 2021), 188; Jeremy
Kessler, Illiberalism and Administrative Government, in Law
and Illiberalism 62 (Martha Merrill Umphrey, Lawrence Douglas &
Austin Sarat eds., 2022).
[8]
Mary Dudziak, Cold War Civil Rights
6–12, 79–86, 158–64 (2000); Sophia Lee,
The Workplace Constitution 35-55, 97-114, 135-190 (2014); Landon Storrs, The Second Red Scare and the
Unmaking of the New Deal Left 1-14 (2013); Jeremy Kessler, Selective
Service and the Separation of Powers, 106 B.U.
L. Rev. (forthcoming, 2026); https://papers.ssrn.com/sol3/papers.cfm?abstract_id=6321998;
Reuel Schiller, Enlarging the Administrative
Polity: Administrative Law and the Changing Definition of Pluralism, 1945-1970,
53 Vand. L. Rev. 1389 (2000).
[9]
For overlapping explanations of the slowdown, see Robert J. Gordon, The Rise and Fall of American Growth (2016);
Claudia Goldin & Lawrence F. Katz, The Race Between Education and
Technology (2008); Robert Brenner, The Economics of Global Turbulence
(2006). For the United States’ “transition to global capitalism” between
the late 1950s and early 1970s, see Leo
Panitch & Sam Gindin, The Making of Global Capitalism 109-131
(2012).
[10]
Julie E. Cohen, Between Truth and Power
107, 30-45 (2019); Melinda Cooper, Family
Values 126–34, 147–55 (2017);
Deborah Cowen, The Deadly Life of Logistics 3–9,
57-75, 101–08 (2014); David Harvey, The
Condition of Postmodernity 141–72 (1989); Greta R. Krippner, Capitalizing on Crisis 39–47, 171–79 (2011); Marc Levinson, The Box
126–34, 242–50 (2d ed. 2016); Levy,
supra note 3, at 517-525, 533-540, 567-575; Mae Ngai, Impossible Subjects 227–34, 258–67, 270–78 (2004);
Panitch & Gindin, supra note
9, at 172-193; Michael J. Piore, Birds of Passage
3–9, 26–34, 53–60
(1979).
[11]
Cohen, supra note 10, at
211-18; Robert L. Tsai, Practical Equality 10–18, 64–72 (2019); David Singh
Grewal, A World-Historical Gamble: The Failure of Neoliberal Globalization,
Am. Aff. J. (Winter 2022), 87;
David Singh Grewal & Jedediah Purdy, Introduction: Law and
Neoliberalism, 77 L. & Contemp.
Probs. 1, 6–12 (2014); Jeremy
Kessler, The Short, Strange Career of Viewpoint Discrimination, in Platform Regulation and
Freedom of Expression in the US and Europe (Ronald J. Krotoszynski et
al. eds., forthcoming), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5920803;
Adam Tooze, Electrostates, Petrostates, and the New Cold War, London Rev. Books (Oct. 27, 2025),
https://www.lrb.co.uk/podcasts-and-videos/videos/lectures-events/electrostates-petrostates-and-the-new-cold-war.
[12] Conor Casey & Adrian
Vermeule, Myths of Common Good Constitutionalism, 45 Harv. J.L. & Pub. Pol’y 103 (2022); Ryan D. Doerfler & Samuel Moyn, After Courts: Democratizing Statutory Law, 123 Mich. L. Rev. 867
(2025); Amy Kapcynski & Joel Michaels, Administering a Democratic
Industrial Policy, 18 Harv. L. &
Pol’y Rev. 279 (2024).