Reflections on Skowronek’s “The Adaptability Paradox”

Stephen Griffin

I’m sorry I didn’t participate in the symposium on Stephen Skowronek’s challenging new book, “The Adaptability Paradox.”  Skowronek probes in detail whether the Constitution’s commitments, especially to separation of powers and federalism, are maladapted to the democratized world created by the “rights revolution” of the 1960s.  As he says, “At the center of the analysis is a trade-off between wide political inclusion and the structural integrity of the Constitution.” (TAP, vii-ix)  This trade-off is expressed by the “adaptability paradox.”  Because I lack Skowronek’s concise and mannered means of expression, I’ll try to state the paradox in my own words.  The idea is that voiding the undemocratic parts of the Constitution in service of democratic principles yielded a new kind of inclusive regime which had no precedent in American history.  Further, the ultimate consistency of this regime with the parts of the Constitution that remained after this makeover is, at the least, untested and at the most, extremely problematic.  This problematic inconsistency has produced increasing dysfunction and, indeed, instances of outright derangement in how each branch of government operates.

After I read the book, I remarked to my fellow bloggers that I could hardly disagree with this diagnosis, at least in its outlines, because it resembles in broad outline the kind of argument I’ve been making off and on since my 1996 book American Constitutionalism: From Theory to Politics.  I’ll note the similarities.  In retrospect, in my 1996 book I was probably arguing two distinct theses at the same time.  One was a “mismatch” theory – the idea that the activist state represented by the New Deal was in considerable tension with the unamended Constitution.  The other was a “democratization” theory (although I did not use that term) – that our experience since the 1960s shows there is a problem operating the Constitution amid a democratic politics unknown to prior American history.  The latter thesis is of course closer to Skowronek’s argument.

I treated these theses as showing the constitutional system in a continual crisis since the 1960s.  The idea that you could have a crisis that, in effect, never ends has been questioned by some scholars and I probably should have found another way to describe what I was observing.  But I viewed the lack of Article V amendment as imposing a hard limit on just how far the Constitution could adapt.  In other words, adaptation through “informal” means has never struck me as a fully effective substitute for formal change.  This is also what Skowronek seems to believe.

The particular spin I put on the democratization thesis was that the full implications of democratization were concealed by the political consensus behind the Cold War even through the 1960s.  I put the theses together as follows: “In the 1960s the politicization of civil society increased rapidly, the legal restrictions on the electorate were for the most part abolished, and the United States experienced a full-fledged national democratic politics for the first time in its history. . . .The politicization of civil society and the democratization of the state had enormously expanded the scope of the national policy agenda.  The range of interests the national state now had to take into account approximated much more closely the range of interests in society.  But there had been no fundamental change in the ability of the national state (read: Constitution) to wield public authority and govern these contending interests.”

In my 2015 book Broken Trust I used studies by John Hibbing and Elizabeth Theiss-Morse to extend the argument that the democratization of American government led to constitutional problems.  Specifically, democratization produced a roiling, contentious and conflictual politics that was deeply at odds with how Americans think politics and government should work.  Accordingly, I argued, trust in government was permanently dented.

Compared to the accounts I offered in my prior work, Skowronek is far more acute and detailed on the impacts of democratization on Congress, the Supreme Court, and the presidency.  As one might expect, his account of the disastrous consequences for our constitutional order of the unitary executive theory is particularly well done and should be required reading in the nation’s law schools.

 While I admire Skowronek’s ability to illuminate the current dysfunction of our system of separation of powers, what he has to say, even as a descriptive-explanatory matter, about the relationship of federalism to the democratization of American politics is hard for many legal academics to hear.  If I read him correctly, Skowronek is saying that by shoving federalism concerns to one side in measures like the Civil Rights Act of 1964 and Voting Rights Act of 1965, we as a polity bought ourselves endless constitutional trouble.  And our current difficulties with separation of powers and the shunting aside of federalism concerns are related.  That is, the steady opponents of these measures, particularly although not exclusively in the South, turned to strategies that would make the presidency and eventually the Supreme Court itself more receptive to their point of view.  Indeed, the process that led to the recent decision in Louisiana v. Callais is arguably an example of what Skowronek is talking about.  Journalists like to describe the VRA as originating solely in 1965, when it is in fact the product of three distinct periods – 1965, the change in the status of section 5 of the VRA after the Allen decision in 1969, and the 1982 amendments.  Lawyers in the Reagan administration like John Roberts and Sam Alito as well as the legal conservatives generally were never reconciled to the last set of changes, with consequences we can all now perceive.  Legal scholars will have their reservations, but they need to reckon with Skowronek’s many insights.