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

Guest Blogger

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.

Skowronek’s Theoretical Framework: Adaptation, Consensus, and Bounded Resilience

The U.S celebrates having “the oldest continuously operating constitution in the world,” but as Skowronek shows, this nearly 240-year record has been enabled through a series of significant transformations and “remodeling projects”(2,6). And, just as the initial U.S. Constitution was not self-executing and required political action to carry it out, so, too, do transformative constitutional changes require political follow-through (95). 

Standing at the core of the book is Skowronek’s theoretical framework and historical tracing of how constitutional transformations or reorderings – reconfigurations of power, authority, and social relationships - can be politically implemented or impeded. His analysis hinges on inferences about serial adaptation and a trio of linked concepts and conditions: reordering adaptation, (re)creation of constitutional consensus, and bounded resilience. Constitutional adaptation is a combination of continuity and change, a type of constrained, “resetting,” “steadying,” stabilizing change to governing arrangements and relations that takes place over decades (9). To carry out a reordering adaptation, political institutions need to create new policies and extra-constitutional “auxiliary” arrangements while retaining many features of the existing system and a connection to the “essential characteristics” of the initial Constitution’s principles and structure (6, 10-16).  These adaptations also depend on constitutional consensus, the idea that some minimal agreement or shared “common sense” about constitutional essentials is necessary for governing and stability. When political institutions work to implement a reordering through a synthesis of innovations, older institutional elements, and links to the initial Constitution’s principles and framework, this helps recreate a constitutional consensus around a new order. 

But Skowronek believes the U.S. Constitution does not have unlimited adaptability; it has “bounded resilience.”  In his conception, the system is intranscendably bounded politically and socially, by agreements about constitutional purposes and limits (such as what is beyond the reach of national governance), and by social exclusions that long kept the most divisive conflicts – over race, labor, and gender – off the national political agenda (31-35). In Skowronek’s analysis, these exclusions were not simply political choices resulting from the biases and social relations of the time, but played a crucial stabilizing function, enabling constitutional consensus and resilience. As he sees it, throughout most of U.S. history, extensive social exclusions “served as a ballast, holding the system together and aiding in the redirection of its energies (35). Exclusion, then, serves as morally and politically unjust yet functional “management device” and consensus-building device: 

“[Exclusion] displaces conflicts over issues that would, if fully engaged, threaten the regime’s survival, and it smooths the way toward agreement on terms of contesting others. It’s not just that exclusions limit the range of interests and opinions the government needs to manage. Rather, the consensus is itself a tacit agreement about what lies beyond the reach of shared principles. The shared interests in government, the “public” interests, is sustained on mutual understandings of who and what are left out.”(34)

Skowronek’s account of bounded resilience raises a critical question: Were the social exclusions he identifies as morally repugnant but necessary stabilizing ballasts truly necessary for stabilization? And were they even very successful as “stabilizers” or did they generate the very civic conflicts and struggles that repeatedly destabilized earlier settlements, catalyzing transformative change? If exclusions served as management device for constraining divisive conflicts, at least for a time, they also fueld sustained challenges – from white working men, abolitionists, suffragists, labor activists, civil rights activists –  challenges that would forge new constitutional meanings and precedents. The formula of exclusion leading to system stability doesn’t seem to hold.

Skowronek’ Historical Cases: Constitutional Adaptation as Successes and Failures?

Skowronek grounds this troubling theoretical framework through a historical-structural approach — a systems-level analysis of pivotal confrontations between older structures of power and authority and new political developments that challenged them (8). He uses this historical exploration to tie bounded resilience to the original Constitution and to identify the conditions under which constitutional adaptation succeeds or fails. Yet we will see that his assessment raises questions about criteria for successful vs. unsuccessful adaptation, and whether constitutional adaptation always involves some combination of successes and failures: both/and rather than either/or. 

He begins by returning to constitutional creation and ratification, which Skowronek views both as the two most extraordinary acts of adaptive reordering in American political development, and as creating the Constitution’s bounded resilience (14). These actions established a set of fundamental principles (sometimes in tension, such as national supremacy and local autonomy, or majority rule and minority protection) and a new foundational structure spearheaded by federalism and separation of powers, as well as judicial independence, bicameralism, the electoral college, Article V Amendment process, and so on (15, 21). But this initial constitutional framework did not exist in the abstract; it was embedded in the founding era’s political and social milieu, including its extensive social exclusions (unpropertied men, African Americans, women, Indigenous peoples, and others).  Skowronek sees this combination of structure + social exclusions as creating the boundary conditions that would continue shaping attempts for constitutional change: “Each breakthrough projected the priority of inclusion onto a framework built to accommodate a more restricted range of participants, and each successive adaptation to democratization has had to reach farther afield to rationalize new governing arrangements”(23). 

Skowronek then takes us through a deeper dive into four historical case studies to “nail down the dynamics of adaptation and its limits” and understand what, other than constitutional principles alone, has supported or undermined adaptive reordering (26). He argues that post-constitutional adaptations have been very inconsistent, and the most “fully articulated” and successful of these, in his assessment, are the party state and administrative state (2, 17). 

He first examines 19th century expansion of political participation to white men without property, and what he views as a successful constitutional adaptation resulting in the “Party State,” which included institutional renovations and new auxiliaries to the Constitution that managed the incorporation of white male suffrage while suppressing issues of slavery to stabilize a new constitutional order (40-41, 52-53). The second case turns to the Reconstruction era, where, lacking sufficient consensus for reordering at every level (national, Northern, and in the Republican party), the transformative promises of the Thirteenth, Fourteenth, and Fifteenth Amendments were “arrested and tightly contained in the follow-through” within a narrow time frame (64).  Instead of a successful adaptive reordering of race relations, there was a major reordering of the national economy (82). 

Next, Skowronek traces the 20th century expansions fueled by the movements of the Progressive Era – farmers, labor, women’s rights and suffrage. He interprets this as yielding successful adaptive reordering that “spanned across decades” and became durable through the Administrative State, which included new auxiliaries that managed demands for more direct democracy, labor and economic rights, and an expanded role of national government while maintaining Black exclusions (86-88).  Stability, again, came at the expense of democratic equality. 

The last and most consequential case is the civil rights revolution of the 1960s and 70s, which achieved broad political inclusion and nationally enforceable civil rights and political equality.

Yet, in Skowronek's account, the civil rights movement and other movements of this time not only failed to generate a new constitutional consensus and stable adaptation, but ruptured the capacity for adaptation. It wasn’t “just that no stabilizing formula took hold,” he says, but that the institutional response reconfigured power and authority in ways that magnified conflicts over constitutional essentials, unleashing sixty years of struggle and “irresolution” (110-111).

His general take is that the 1960s civil rights movement dismantled federalism's barriers and enforced racial inclusion, followed by subsequent rights struggles and legislation for women’s rights, LGBTQ+ rights, disability rights. As a broad sweep of groups were incorporated into full citizenship and equal rights, the constitutional system was “unbound” and lost its key stabilizing constraints: social exclusions and the grounding of constitutional principles and structure in the initial constitution. This, then, gave rise to “the adaptability paradox” headlining the book, which is roughly this: the continued expansion of democracy has been the “crowning achievement” of the constitutional system and engine of its resilience, but has also been the source of its current dysfunctions, and perhaps its undoing (109-110). Skowronek suggests that now

“the Constitution’s many contentious principles have been thrown up for grabs to a wider array of participant interests, and inconsistencies among those principles have been magnified in the process. The more we have prioritized democracy, the harder it has gotten to find the common sense of the old structure to recapture a set of shared purposes within it, to negotiate the kind of system-level adjustments to alleviate stress, to secure another way forward.” (22) 

The consequences, in Skowronek's view, have been severe and perhaps irreversible. He sees the move to full inclusion as creating conditions where federalism’s capacity to filter divisive conflicts is “shattered” and constitutional principles are “up for grabs” by a wide range of competing interests, which stokes conflict and insecurity.  The result is zero-sum politics and "calcified" divisions that now permeate contemporary politics (125, 117).

Thus, Skowronek treats the Party State emerging from demands for workingmen’s suffrage and the Administrative State emerging from Progressive era efforts for democratization as overwhelmingly successful reorderings while treating the civil rights revolution as categorically different.  Not only did it fail to generate a successful reordering, he suggests, but it created a mouting constitutional catastrophe. This invites reconsideration. The Party State and Administrative State not only both  relied heavily on continued exclusions (of African Americans, women, and others), which he emphasizes, but they also gave rise to structural distortions that contribute to constitutional dysfunctions and undermine democratic accountability in the present, such as gerrymandering, primaries that empower extremes, and administrative capture. If  “successful” adaptations relied on exclusions that fueled resentments, civic struggles, and subsequent constitutional challenges, and if they also initiated or encouraged some significant structural problems for the functioning of constitutional democracy, does this not suggest that there are no thoroughly stabilizing constitutional reorderings?

It seems instead that all constitutional reorderings are inevitably partial, contested, subject to backlash and ongoing pushback, and result in mixed outcomes and unintended consequences. Rather than unmitigated successes and failures, we might see differences in degrees of success, and in the particular areas or types of failures.  The question of successful adaptation becomes especially salient when we turn to the civil rights revolution, where Skowronek sees outright failure to generate a new consensus. A closer look, however, reveals important institutional innovations and civic mechanisms that partially met his criteria for adaptation—points I develop in the next post.

While Skowronek’s framework prompts  questions about the role of exclusions and his judgment of successful and unsuccessful adaptations, his analysis offers two especially valuable contributions to our understanding of constitutional development.

Remaking Constitutional Meaning: The Extended Political Work of Reordering

Studies of constitutional transformation in the U.S. often center on the achievement of formal amendments or landmark “superstatutes” with less sustained attention to the extended, messy work of implementing change or translating promised transformations into reality (see, e.g., Ackerman 1991, 2014, Beaumont 2014). One of Skowronek’s powerful contributions is to turn our attention squarely to this crucial ongoing political work, and to broaden our understanding of the institutions and arrangements required to carry transformative reorderings forward, including new institutional mechanisms, "auxiliaries," and stabilizing consensus.  Skowronek’s approach brings insight and complexity to our understanding of constitutional developments, particularly those related to the rise of white male suffrage and to Progressive and New Deal era demands for constitutional transformation. By emphasizing constitutional reordering as an extended political process requiring new institutional arrangements, governing formulas, and auxiliaries, Skowronek reorients our understanding of how constitutional change actually works, and how long it can take. Reordering cannot be achieved merely through challenges to the old system, reinterpretations of constitutional principles, and articulations of new constitutional goals, nor can it be achieved through initial adoption of legislation or new  judicial decisions (28-29). Reordering requires extended political work over time, by multiple political institutions, and through a combination of innovative mechnanisms and adjustment of existing political instruments. For instance, the new constitutional goals and commitments advanced by multiple Progressive Era movements (labor activists, suffragists, farmers, and social reformers) were neither fully nor immediately implemented through successful struggles for four constitutional amendments achieved between 1913 and 1920 (the federal income tax (16th), direct election of senators (17th), prohibition (18th), and women's suffrage (19th). The follow-through on Progressive goals of reconfiguring institutional arrangements and governance around social reform, democratic accountability, and economic democracy extended over more than six decades. And it was carried forward not only through an array of landmark legislation – from the Pure Food and Drug Act and Federal Farm Act to the New Deal’s Fair Labor Standards Act, Social Security Act, and National Labor Relations Act – but also (and, for Skowronek, overwhelmingly) through a new administrative state with new agencies, commissions, and regulatory bodies charged with overseeing new programs and enforcing new regulations. Constitutional reordering, Skowronek persuasively shows, comes not from amendments themselves but from this extended and layered follow-through. This conclusion has far-reaching implications for how we understand constitutional history and constitutional interpretation.

The Further Challenge to Originalism

The Adaptability Paradox’s account of repeated reordering offers a further challenge to the strict versions of originalism favored by the conservative legal movement.  Strict versions of originalism, such as Justice Antonin Scalia's original public meaning approach, treat the constitutional understandings of 1787 or subsequent ratification eras as a fixed and authoritative anchoring point for interpretation (Scalia 1998). Skowronek’s historical study provides additional illustrations of how “the Constitution’s operative meaning” and the “terms and conditions of constitutional government” have been repeatedly remade through reorderings, producing new constitutional meanings and consensus, each displacing previous versions. Together, these historical aspects of constitutional development undermine strict originalism's foundational premise: the constitutional order originalism seeks to recover never operated through text alone, never rested on a clear, fixed meaning, always depended on political actions and arrangements beyond what the text specifies or the founders could have anticipated, and repeatedly shifted as groups challenged and changed the initial constitutional order and the recognized citizenry and electorate expanded.  Skowronek’s challenge extends a growing body of scholarship on constitutional change and democratic development (See also, for example, Ackerman 1991, 2014; Ritter 2006;  Balkin 2011, Beaumont 2014, Gienapp 2018). 

The Adaptability Paradox gives us much to grapple with, offering many insights while raising many questions and leaving some s important dimensions of constitutional development underexamined, including his treatment of the civil rights revolution. In the next post, I examine how that era generated its own pragmatic adaptations through the rise of a civil and social rights state—new institutional mechanisms, overlapping social programs, and important (if contested) cross-racial buy-in—suggesting a partially successful reordering that Skowronek’s framework underestimates. 

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