Balkinization

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

2026-04-17T09:30:00.022-04:00

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.

[1] Stephen Skowronek, “Authoritarianism, Then Now,” The Democracy Project, 100 Ideas in 100 days, October 22, 2025.

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

2026-04-16T09:30:00.012-04:00

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.

[1] Jeffrey Tulis and Nicole Mellow, Legacies of Losing, Chicago, 2018.

[2] John Dearborn, “Presidential Precedent: The Carter Administration, the

EEOC, and the Rise of the Unitary Executive Theory,” working paper, Vanderbilt University; John Dearborn, “ ‘The Civil Rights Action is in the Executive Branch’ ”: Reconsidering the Rise of Nixon’s Administrative Presidency,” working paper Vanderbilt University.

A Naval Blockade is an Act of War

2026-04-12T21:04:00.004-04:00

During the Cuban Missile Crisis, the Kennedy Administration was careful to label its naval action to stop further deliveries by Soviet ships a "quarantine." The reason for this was that a "blockade" is an act of war under international law.

I don't know all the legal and diplomatic consequences that flow from calling the Iran operation a blockade instead of a quarantine. As an Admiralty teacher, all I can say is that acts of war trigger mutual exceptions or force majeure is most maritime contracts.

Is Liberalism Inherently Authoritarian?

2026-04-10T09:53:00.006-04:00

The Danube Institute in Budapest has just published an exchange between me and two of its resident scholars, Jacob Williams and Philip Pilkington, on the question, "Is Liberalism Inherently Authoritarian?" It builds on a piece of mine that appeared last month in The Unpopulist. The core critical claim of postliberalism is that liberalism inevitably turns into its opposite; that what begins as an ideology of tolerance and free speech ends in repression. I attacked that claim for its vagueness about just how liberalism purportedly leads to that baleful result. Williams and Pilkington respond, and I wrote a surrebuttal. I remain unpersuaded, but the conversation was a fascinating window into the postliberal mind.

The Fragmentation of Truth

2026-04-07T09:00:00.001-04:00

Valérie Bélair-Gagnon

When we talk about AI and fact-checking, we often fixate on the informational: the deepfake, the viral lie, or the bot. Yet the disinformation crisis is fundamentally institutional. We have reached a crossroads where we must shift our focus from the viral lie to the underlying political economy that shapes who defines truth, and at what cost. If we fix the information but leave the infrastructure of truth-making in the hands of a few market-driven empires, we have not solved the disinformation crisis; we have simply automated it.

This institutional struggle is at the heart of the anti-disinformation assemblage, a contingent, often messy configuration of platforms, states, technology organizations, and editorial actors. In an ongoing collaborative book project, my co-authors and I argue that this assemblage is currently undergoing a profound fragmentation. These diverse actors are held together by a struggle for definitional authority: the power to decide what constitutes a social problem and what requires an intervention.

The Response-Side Gap

If you look at the last decade of interdisciplinary research on disinformation, there is a massive supply-side bias. We have thousands of papers on how disinformation is produced and why people believe it, but there is a lacuna on the response side. We need to know more about how the institutions responding to the crisis actually allocate authority in practice.

Governance interventions in this field often reinforce existing hierarchies. When we introduce AI into this mix, we are adding a tool for efficiency and automating existing institutional biases. This occurs in the automation of harm detection over veracity. During high-stakes elections, platforms deploy AI to suppress borderline content, material that violates policy, and risks brand reputation. This shifts the goal from a shared pursuit of truth to a mechanical pursuit of market stability. AI tools are programmed to find what is least disruptive to a platform's advertising ecosystem. We are thus moving from state-led propaganda to platform-led digital governance, in which the authority to verify information has shifted from public bodies to private, algorithmic entities.

Three Pillars of the AI-Truth Economy

As we explore this shift, three critical questions emerge:

Does AI reshuffle or entrench power? Most AI tools are beholden to the walled gardens of platforms. If a fact-checking startup builds an AI detection tool, its survival depends on API access granted by Meta or Google. In this context, AI centralizes verification infrastructure rather than democratizing it.
Is the goal truth or market stability? AI moderation is implemented because it is scalable and cost-effective, not because it is the most accurate. We are seeing an epistemological relativism where “harm,” which carries legal and brand risks, is prioritized over “veracity.”
Has “truth” become a luxury good? We are currently in what our team identifies as the "Retraction Era" (2022–2025). Platforms are scaling back human trust and safety teams in favor of AI to reduce costs. By failing to mandate "human-in-the-loop" oversight, law and policy have allowed a global decoupling: while the Global North retains some algorithmic protections, the Global South is left with automated-only moderation.

Consider the Tigray War in Ethiopia. While English-language content enjoys layers of human and algorithmic oversight, internal documents, such as the Facebook Papers, revealed that Meta’s AI systems were blind to languages like Amharic and Oromo. Inflammatory calls for ethnic violence remained active for days because AI tools lacked the linguistic nuance to identify the threat. Platforms prioritized the high-cost maintenance of "truth" in Western markets while leaving the Global South to be moderated by black-box systems that could not recognize the significance of the language until violence had already spilled into the streets.

Scaling the Analysis: Macro, Meso, and Micro

To understand how this functions, we must look at the anti-disinformation assemblage at three levels:

* Macro Level: Three digital empires are currently projecting power. The U.S. follows a neoliberal model, privileging free markets; the EU acts as a regulatory superpower focusing on rights; and China utilizes a state-driven model of surveillance. AI is the technical and legal force currently shaping the boundaries of acceptable speech globally.

* Meso Level: Initiatives such as Vera.ai and Logically Intelligence have framed disinformation as a technical problem, solvable with software. This technologizing of fact-checking turns an epistemic struggle into a data-management task. Similarly, X’s Community Notes shifts the labor of truth-seeking onto unpaid users, turning a political debate into a ranking problem.

* Micro Level: Consider the human fact-checker. Unlike traditional journalists, fact-checkers make explicit epistemic judgments. When President Biden claimed his uncle was eaten by cannibals, legacy outlets reported the claim without evidence but hesitated to label it a lie; independent fact-checkers like Snopes made an explicit judgment. Yet, as these actors partner with platforms, they become serfs, a precarious labor force for the very tech giants they are meant to monitor.

Moving Past the Disinformation Crisis

We must recognize that AI and law are not just tools; they are reflections of a crisis of trust in professional authority.

To counter the walled gardens of the digital empires, we must move toward a public-interest infrastructure. Regulators should mandate that platforms provide real-time API access to independent researchers. To stop global decoupling, we must regulate the quality of AI, not just its output quantity, perhaps by mandating specific ratios of human local experts.

Law and policy can regulate bad content while simultaneously addressing the asymmetries of truth-making. If we do not address the infrastructure, we have not solved the crisis. We have automated it.

Valérie Bélair-Gagnon is Associate Professor at the Hubbard School of Journalism and Mass Communication, University of Minnesota-Twin Cities. You can reach her by e-mail at vbg@umn.edu.

Collaborators on the forthcoming book project include: Steen Steensen (OsloMet), Rebekah Larsen (MIT), Lucas Graves (Universidad Carlos III de Madrid), Bente Kalsnes (Kristiana University College), Oscar Westlund (OsloMet/Gothenburg), Lasha Kavtaradze (Kristiana University College), and Reidun Samuelsen (Norwegian Media Authority).

Pluralist Modalities in Originalist Clothing: Thoughts on Arguments in Trump v. Barbara

2026-04-06T12:00:00.001-04:00

James Fox

Like most observers I listened to the oral arguments in Trump v. Barbara for signals about the possible vote alignment in the challenge to President Trump’s Executive Order declaring that birthright citizenship under the fourteenth amendment no longer applies to children whose parents are in the United States without authorization or long-term domicile. I left the argument thinking about how this quintessential originalist dispute in fact revealed the justices shifting around in a sea of rhetorical modalities, and how the scant efforts to attend to all the modalities inhibits argument and analysis.

As the case has been presented in the briefing, in the lower courts, and in much of the legal social mediasphere, it is almost entirely an originalism debate. The opponents of Trump’s Executive Order have a lot of text and ratifying history on their side, the leading precedent is largely originalist in character, the main supporters of the EO have developed long-winded originalist arguments on the fly and themselves are getting strong pushback for that effort by fellow conservative originalists as well as liberal scholars.

The oral arguments reflected a lot of this, of course. But I also thought they revealed important ways in which all the modalities (here thinking primarily of Philip Bobbitt’s modalities but not limited to them) were lurking in the background. Here are some thoughts on that reaction to the argument, with a focus mainly on the justices’ questions.

Chief Justice Roberts: “It’s a new world [but] it’s the same constitution”

For the government Solicitor General John Sauer argued that the modern experience with unauthorized immigration reveals the necessity of interpreting the text to exclude children of undocumented parents from citizenship. Roberts shot it down with the above originalist-style quip.

But Roberts is not an originalist. Indeed, this quip borders on hilarity from the author of Shelby County v. Holder’s equal state sovereignty principle, which he used to override a congressional power that itself has deep originalist roots, to say nothing of the muscular presidential immunity he crafted in Trump v. United States, which exists nowhere is either text or contemporaneous historical meanings.

At bottom this is Roberts being a pluralist. Here the originalist ideal of a “fixed” constitution does the work he appears to want. Roberts is artful in his pluralism, able to craft phrases to capture a point that distracts from questions of whether there is interpretive coherence in his jurisprudence. I suspect he also here is poking at Alito, who appeared to fully support Sauer’s evolving principles argument.

Justice Alito’s Living Constitutionalism

Alito presented a transparently living constitutionalist defense of the government’s position. Alito tossed Sauer a lifeline by making one of originalism’s common arguments to address the problem of text across time. The basic idea is that originalism always allows adaptation to new technologies, e.g. applying the fourth amendment to GPS signals or applying the second amendment to handguns (Alito actually used the less helpful analogy of theft statutes applying to microwaves). Alito tried to shoehorn into this evolving technologies idea some kind of “evolving laws” concept whereby the fact that federal law has changed over time to create new categories of approved and prohibited migration, or that the migration patterns themselves have changed, somehow analogizes to advances in technology. And while there may be intellectual value in seeing law as a technology, that’s not at all Alito’s point. Obviously this move gives away the game of originalism, since Alito is really saying that evolving social and political norms should carry strong interpretive weight as against historical and textual evidence. This is precisely what Alito and the Court rejected in New York State Rifle & Pistol Association v. Bruen where it mandated an absurdly low level of generality when considering legal and social changes to gun regulation over time (changes that themselves were tracking the very technological changes to firearms the Court so blithely accepts).

Ultimately, the evolving textual application Alito is going for here is just living constitutionalism done poorly (because not done openly). Similarly, Alito later hypothesized some version of a sleeper-cell, scary-alien enemy: would a child of an Iranian national be a birth citizen if he also had an obligation to serve in the Iranian military? Again, not originalism but instead an odd kind of prudential bogyman argument. Notably he made no effort to distinguish interpretation and construction or fence off construction zones to do any of this work.

Justice Kavanaugh and Section Five

Kavanaugh explicitly asked Sauer to comment on congressional powers under Section Five of the fourteenth amendment, and directed advocates to the 1952/1940 statute where congress, in detailing a broader range of paths to citizenship, parrots the fourteenth amendment’s birth citizenship clause. Before arguments I thought some justices might take this route to avoid the constitutional question and hold that the EO was beyond the president’s power under this statute, which, given its history, pretty clearly adopted the broad reading of birthright citizenship. But the way this played out I suspect the move instead may be to open a path for congressional power under Section Five to define the exceptions encompassed by the “subject to the jurisdiction” proviso. This potentially connects Kavanaugh’s line of questioning with Justice Barrett’s. Any development of this more structural path would require significant engagement with this Court’s anemic view of congress’ Section Five power and with how it overlaps with the congressional powers over naturalization, so I am not sure how enthusiastic Kavanaugh was about this. But he was clearly thinking about it.

Justice Barrett & the Exceptions

Barrett seemed very interested in trying to extract a principle from the three exceptions to birthright citizenship evident in the drafting history and in United States v. Wong Kim Ark: children of diplomats, children born in territory under foreign occupation, and children of Native Americans under tribal jurisdiction. But why? When dealing with exceptions one need not find rules for them – the pertinent principles are derived from the main rule (here, citizenship by birthright) and exceptions can just be that – isolated exceptions (or as Roberts said, “quirky” and “idiosyncratic”). You only really need a sub-principle connecting the exceptions if you want to open the possibility of applying the subprinciple to other situations, that is, if you want to make new exceptions. Perhaps she is thinking only of explaining why the administration’s proposed exceptions – children born to parents who are not legally present or are temporarily present – fail. But this would be a cumbersome way to say the government’s applications don’t fit long-established exceptions. When combined with her questions about congressional powers and with Kavanaugh’s similar questions, this may suggest a path to a holding that leaves open some room for congressional expansion and contraction of the exceptions under some unifying theory.

Justice Gorsuch: I am the expert on Indian law here, folks

Sauer absolutely had to know that since the exclusion of members of Native American tribes was one of the three recognized bases for the “subject to the jurisdiction” proviso, Gorsuch would have thoughts. He has repeatedly shown himself to be, at least in his own mind, the expert about and champion of Indian law on the Court. Yet when Gorsuch asked Sauer if his domiciliary theory of how the exceptions to birth citizenship can change over time meant that all Native Americans born within the international borders of the United States are citizens under the fourteenth amendment (as opposed to merely the 1924 statute), Sauer said he had not thought about the question. Bad advocacy prep aside, what was Gorsuch’s point? Was it to show that Sauer’s theory of exception expansion makes no sense as original meaning? Or was it instead to suggest that congress exercised its Section Five power in the 1924 Act by contracting the exceptions, which might also mean congress has the power to expand them as well? Or was Gorsuch hinting that the doctrinal history of Native exclusion Sauer relied on no longer holds? Gorsuch pressed this point with Cecillia Wang for the ACLU, who said the fourteenth amendment was best seen as a constitutional floor for citizenship that congress can expand. I was not sure whether Gorsuch bought the floor idea or not. But Gorsuch’s self-conception as the Indian law justice will undoubtedly affect how he sees and analyzes the meaning of the clause and the proviso, likely pulling him away from Thomas’s inclination toward an anti-Dred-Scott-and-nothing-else interpretation.

Justice Thomas: Dred Scott and only Dred Scott

Thomas primed Sauer with a softball about Dred Scott, and said almost nothing else after that, so it is difficult to know where he stood. Perhaps his question was merely a way to help Sauer make an obvious point that the citizenship clause was significantly, if not primarily, about undoing Taney’s holding that Black people can never be United States citizens. And maybe Thomas did not realize Sauer would run so far with that ball as to cite the Mississippi Slave Code in support of his argument, thus apparently finding a way to side with the confederacy even while rejecting Dred Scott. Ultimately Sauer’s argument – echoed in Trump’s claims – is that the Black citizenship purpose of the clause also limits the reach of the clause beyond that purpose. Thomas seemed inclined to this later when he asked a question expressing doubt that the framing of the amendment had anything to do with immigration.

This is fundamentally a reactionary view of the amendment, one which holds that it served only to secure basic rights for newly freed and free Black Americans and cannot be used to do anything else, a view wrapped in a slavery-only view of the Reconstruction amendments generally. Thomas could easily lean into that view given his “Let him alone” misreading of Frederick Douglass. But he could also be persuaded by a somewhat broader view connected to at least some of the conservative originalists critics of the EO such as Keith Whittington and Michael Ramsey. It is hard to see him being willing to recognize citizenship protections for children of parents not lawfully present, but he also did not show an inclination toward Alito’s free-ranging originalism-only-in-name approach either. Thomas has shown no hesitancy in adopting questionable historical readings of the fourteenth amendment framing period, and I see no reason to think he won’t do so here.

Thomas also prompted Sauer to the argument that somehow the word reside – which comes at the end of the Citizenship Clause and refers to how someone who is a United States citizen by birth under the first part of the sentence also establishes their parallel but subordinate citizenship in a state. Sauer pumped this up into an argument that “subject to the jurisdiction” inherently includes some long-term proof of residence and therefore domicile (a word appearing precisely nowhere in the text). Such a reading is grammatically and semantically bizarro. Perhaps Thomas is flirting with it, but I would be surprised to see it appear even in a dissenting opinion. Sometimes textualist arguments are too tortured to even be tried.

Liberal Wing – Don’t muddy the waters you drink from

My sense of how Justices Jackson, Kagan, and Sotomayor approached their questioning was they had a sense that enough of their colleagues supported the ACLU challenge that it was best not to stir things up too much.

Jackson was all over Sauer’s claim that congress can set forth new exceptions – and in fact did so when it made immigration illegal for large groups of people starting in the 1870s and 1880s. I think she was the most bothered by the prospect of some sort of Section Five power to rewrite “subject to the jurisdiction” to basically swallow the “born . . . in” rule. She reacted firmly against the suggestion that the framers and ratifiers would have meant this language to allow for that radical move.

Jackson also got after Sauer about the pragmatics of the EO. When she said “are we bringing pregnant women in for depositions?” she articulated in striking terms the prudential problems with the EO and the incredibly destabilizing costs it would impose. While Jackson is not at all hesitant to address fourteenth amendment original meanings, she seemed also to have little truck with any of Sauer’s more living constitutionalist gestures.

Sotomayor presented the most doctrinal questioning, asking about more recent cases that suggest a long-standing assumption by the Court that the exceptions are narrow and the main principle broad (although she oddly stumbled on the timing and perhaps holding of a 19^th century Indian law precedent). It was striking how little this line of analysis arose. Depending on how broadly the Court decides to read Wong Kim Ark, these subsequent cases, along with the traditional practice of the federal government over that time, could foreclose even the slightest crack in the birthright rule proposed by Sauer. I look for this precedential mode to play more of a role in the eventual opinion, especially if authored by Roberts or Kagan.

Kagan, revealing her own pluralist approach, emphasized with Sauer that several modalities – text, history, traditional practice, precedent – all point against his revisionist theory and so require much more persuasive evidence than he presents. I sensed she was trying to find common rhetorical ground with the Chief here. This also backed Sauer into the corner where he misrepresented a 1921 law review article in a failed effort to say the traditions and practices were not uniform.

Another place where I thought Kagan was trying to work of a mind with Roberts was where they both pressed Wang on the many references to “domicile” in Wong Kim Ark. This is probably the biggest hurdle in countering Sauer’s argument, and both seemed interested in a good articulation of why domicile is not at the very least a limitation on Wong Kim Ark’s holding, if not itself an essential part of the holding (which Sauer claims). I am not sure they got that answer in oral argument. Justice Jackson stepped in to provide one by saying the Wong Kim Ark Court may have stressed the fact of the parents’ domicile to gain public acceptance of the opinion that was, by its holding, unusually generous toward an often-despised immigrant group. (Kagan and Roberts would do well to read John Mikhail’s Balkinization post and linked work on the weakness of the domicile argument.)

I mentioned at the top that I thought all of Bobbitt’s modalities were in play. The only one not really discussed, I think, was ethos, or the ethical social norms modality. It often happens that this “public values” modality operates sub rosa, present but unarticulated. That seemed true here as well. Because of course the whole thing about the first sentence of the fourteenth amendment is its value-asserting preference for a radical birth equality. That’s what overturning Dred Scott was about. It’s what Reconstruction was about. It’s what the New Birth of Freedom and mass slave liberation was about. And, on the other side, the barely contained reason behind Alito’s dislike of the concept of birth citizenship and Trump’s open political justifications for effectively abandoning it are values-based norms of what it means to be an American, either conceived in a must-be-law-abiding sense or as a part of a darker vision of a Herrenvolk democracy. The problem is we have limited and ever-shrinking paths to articulating those reasons within constitutional law discourse. Yet these reasons are the basis of this conflict politically, and to the extent contested constitutional law is largely political law, they are at the heart here too. That matters, because when the ACLU wins this case – as they will – an opinion that simply says “the text and history tell us so” speaks very differently than one that says “the text and history express some of our most cherished national values and here they are.” While an originalist decision could have the potential to also speak in ethos, I fear it won’t, and we will be poorer for that.

James Fox is a professor of law at Stetson University College of Law. He can be reached at fox@law.stetson.edu

Presidential Appropriations

2026-04-05T19:27:00.001-04:00

President Trump has rejected any constraints on the violent, lawless, reckless behavior of Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) agents even after they killed several U.S. citizens. He also has repeatedly rejected a bipartisan Senate compromise that would have funded all of the Department of Homeland Security (DHS) apart from those two agencies. This compromise would not have interfered with the continued operations of ICE and, at least in the near term, of CBP: both agencies received a huge influx of funds under the One Big Beautiful Bill Act (OBBBA) President Trump pushed through Congress last summer.

Without a DHS appropriation, most DHS employees, including those at the Transportation Security Administration (TSA), the Federal Emergency Management Agency (FEMA), and the Coast Guard, have been working without pay. TSA officers have been resigning and calling in sick, leading to huge lines at airports and numerous missed flights. Other DHS employees have been seething in relative obscurity. This post analyzes the legality, or lack thereof, of the actions President Trump has taken in response to this impasse.

When the previous temporary appropriation for DHS became unavailable on February 14, President Trump kept ICE agents working and continued to pay them with funds from section 100052 of OBBBA. This section provides $29.85 billion to ICE for an extensive list of purposes including “Hiring and Training” and “Performance, Retention and Signing Bonuses”. Although not a clean match with paying the regular salaries of on-going ICE employees, most people likely would regard that as sufficient authority for these payments. Section 1000052 likely provided sufficient funds to support ICE for the remainder of this fiscal year.

President Trump also kept CBP agents working and paid them under section 100051 of OBBBA. Section 1000051 provides DHS $2.055 billion for several purposes including the “[h]iring and training of additional U.S. Customs and Border Protection agents, and the necessary support staff, to carry out immigration enforcement activities.” President Biden’s final budget proposal estimated that CBP would spend about $16 billion in a year so, even combined with 4.5 months of funding under continuing resolutions, section 1000051 funds alone likely would not suffice to fund CBP through the end of the fiscal year in September.

Finally, President Trump required many other DHS employees, including TSA officers and much of the Coast Guard, to continue working during the partial shutdown that began February 14. This likely was appropriate under section 1342 of the Anti-Deficiency Act, which makes an exception to its general prohibition on the federal government accepting unpaid work where necessary to address “emergencies involving the safety of human life or the protection of property.” He did not pay them, however, because section 1341 of the Act, which prohibits spending federal funds without a statutory appropriation, contains no “emergency” exception.

President Trump was unable to continue paying these non-ICE, non-CBP employees under sections 1000051 or 1000052 because the “Purpose Act” states “Appropriations shall be applied only to the objects for which the appropriations were made except as otherwise provided by law.”

The Government Accountability Office’s (GAO’s) Red Book of Appropriations Law, on which the Supreme Court has relied, characterizes the “Purpose Act”: as “Simple, concise, and direct, Congress originally enacted this statute in 1809 and it is one of the cornerstones of congressional control over the federal purse.” It quotes a 19^th Century Comptroller of the Treasury: “It is difficult to see how a legislative prohibition could be expressed in stronger terms. The law is plain, and any disbursing officer disregards it at his peril.” That “peril” is the Anti-Deficiency Act’s criminal penalties. GAO notes that “[i]f a proposed use of funds is inconsistent with the statutory language, the expenditure is improper, even if it would result in substantial savings or other benefits to the government” and “transfer between appropriations is prohibited without specific statutory authority, even where reimbursement is contemplated.”

As public irritation over long airport security lines mounted and Democrats continued to refuse to appropriate more no-strings money for ICE and CBP, President Trump repeatedly instructed congressional Republicans to reject Democratic bills that would have funded the rest of DHS and let ICE and CBP continue to spend OBBBA funds. When Senate Republicans disobeyed and agreed to legislation that would do essentially that, House Speaker Mike Johnson prevented the Senate bill from coming up for a vote. President Trump then ordered DHS to pay its workers notwithstanding the lack of an appropriation.

On March 27, President Trump issued a memorandum to the Office of Management and Budget (OMB) and DHS ordering them to pay TSA employees. He stated that “[a]s President of the United States, I have determined that these circumstances constitute an emergency situation compromising the Nation’s security” but cited no statute making such a determination legally relevant. In addition, he did not specify what appropriation, if any, should be drawn down to provide these payments. Instead, he simply instructed OMB and DHS to make these payments “consistent with applicable law, including 31 U.S.C. 1301(a)”, the “Purpose Act”. No available appropriation has a statutory purpose that would include paying TSA officers. A week later he issued second a memorandum to OMB and DHS directing that “each and every employee of DHS” be paid. This memorandum again contained an emergency declaration and a citation to the “Purpose Act” and again failed to specify any source of funds for the payments he was ordering.

With the Administration not advancing a theory of why this action might be legal, outside analysts have discussed section 90007 of OBBBA. This section states:

In addition to amounts otherwise available, there are appropriated to the Secretary of Homeland Security for fiscal year 2025, out of any money in the Treasury not otherwise appropriated, $10,000,000,000, to remain available until September 30, 2029, for reimbursement of costs incurred in undertaking activities in support of the Department of Homeland Security’s mission to safeguard the borders of the United States.

These funds are clearly available for CBP agents at the nation’s perimeter. One could plausibly argue that CBP officers at international airports are indirectly responsible for safeguarding our borders in that anyone to whom they refuse entry will quickly be sent back across those borders. The Administration contends that ICE and CBP enforcement actions in the country’s interior somehow are part of border security; that position flies in the face of the ordinary usage of language and a long history of distinguishing between border and interior enforcement actions.

Even if one accepts the Administration’s unilateral reconceptualization of border enforcement, however, that at most helps fund CBP and the Coast Guard. As the President’s own memo notes, TSA works only in “our domestic travel system”, not “to safeguard the borders of the United States.”

The President directs OMB and DHS “to use funds that have a reasonable and logical nexus to TSA operations” for TSA pay and “to use funds that have a reasonable and logical nexus to the functions of DHS” to pay DHS employees. This appears to reference the first of the three steps GAO applies to determine the propriety of an expenditure. This step allows spending an appropriation only on activities necessary to accomplishing the statutory purpose of the appropriation. That analysis is impossible, of course, without first establishing the appropriation’s purpose. And for this, GAO cautions “The actual language of the appropriation act is always of paramount importance in determining the purpose of an appropriation.” (The Supreme Court’s Textualists have nothing on the GAO.)

The claim that paying DHS employees has “a reasonable and logical nexus” begs the question: “to what?” If the Administration had an appropriation whose purpose met this test, surely it would have disclosed it in the presidential memoranda or in response to questions thereafter. Indeed, if the Administration thought paying DHS employees was permissible under existing law, surely it would have done so in February.

Moreover, even if the Administration could satisfy the first part of GAO’s three-part test, it likely would fail the third, which prohibits spending general appropriations on an activity Congress has addressed with a more specific appropriation. “It is a well-settled rule that even where an expenditure may be reasonably related to a general appropriation, it may not be paid out of that appropriation where the expenditure falls specifically within the scope of another appropriation.” Congress has addressed compensation for DHS employees in several specific appropriations, all of which barred spending funds after February 14. The Administration could not lawfully evade that limitation even if it had a broader appropriation whose language plausibly permitted the expenditure.

This is not a case of necessity. President Trump does not care for the terms of the deal Congress is offering. He can certainly hold out in the hopes of getting something better. But disregarding the Constitution to avoid bargaining with a coordinate branch of government is no more legitimate for him than it would have been for any of his many predecessors who disliked terms that Congress was offering.

President Trump is developing a habit of spending funds in defiance of the Appropriations Clause, the Anti-Deficiency Act, the Purpose Act, and other statutes. His action to pay servicemembers during last fall’s partial government shutdown was wholly lawless. His practice of keeping donations from affluent benefactors, and the proceeds from sales of Venezuelan oil he has seized, in accounts he controls outside the U.S. Treasury violates the Miscellaneous Receipts Act. That Act requires funds to be promptly deposited in the Treasury – where they become subject to the Appropriations Clause.

This is important. Although it may strike some as rather technical when compared with usurping Congress’s power to declare wars in a disastrous war of choice against Iran, Congress’s Power of the Purse is foundational to most other checks on presidential power. The Court’s unwillingness to enforce various constitutional limitations on presidential power has been defended by arguing that Congress may defund actions of which it disapproves. If the President may appropriate funds for whatever actions he desires without regard to statutory limits, that fallback constraint no longer exists. Should Congress ever muster the will to cut off funding for President Trump’s war against Iran or other foreign adventures (Greenland? Cuba?), we may expect that the President will simply declare a national emergency and order that funds continue to flow based on some wild “nexus” theory, perhaps again not even bothering to state which unrelated appropriation he chose to pilfer.

@DavidASuper.bsky.social @DavidASuper1

Who’s Afraid of a Constitutional Convention?

2026-04-05T09:30:00.001-04:00

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

Nikolas Bowie

Two years ago, a ballot question asked Rhode Island voters whether there should be a convention to revise the state’s constitution. The Rhode Islanders answered no. Overwhelmingly. With 62 percent of voters opposing the proposal, an observer across the border might assume the Ocean State’s residents love the way their government is structured. It looks a lot like the federal system, with a bicameral legislature chosen by first-past-the-post elections, a separately elected chief executive, and an appointed judiciary that sits for life.

Rhode Island isn’t unique in its support of the status quo. It’s one of fourteen states whose constitution requires voters to consider, every few decades or so, whether their state constitution needs a reset. From Alaska to New York, voters in these states consistently reject the request. Year after year, when Americans are given the most frictionless option possible for reimagining how government in the United States might be restructured, they choose to keep things as they are.

The irony, of course, is that the Federal Constitution looks frailer than ever. The past two decades have crammed newsfeeds with the downsides of bicameralism, first-preference-plurality elections, presidentialism, and judicial supremacy. As Stephen Skowronek observes in The Adaptability Paradox, the institutional arrangements that sat at the vanguard of 18th-century political science have increasingly failed to serve as an agreed-upon anchor for our current, more inclusive society. He notes that the Federal Constitution has proven remarkably adaptable at responding to crises, including those sparked by partisanship and demands for white male suffrage in the 1820s; abolition and demands for black male suffrage in the 1860s; the administrative state and demands for women suffrage in the 1910s; and the attempted fulfillment of universal inclusion in the 1960s. But he writes that this adaptability comes with a paradox: Each time the Constitution is renovated to accommodate a more inclusive polity, it loses its ability to “make a burgeoning democracy work aligned with a shared understanding of its formal arrangements and their purposes.” The more the Constitution adapts, the less coherent its structure becomes.

Skowronek rightly notes that when it comes to what should be done about this paradox, “we have ideas aplenty.” Legal scholars and political scientists regularly diagnose our constitutional maladies and prescribe reforms that will push the United States toward European-style social democracies, with their parliaments and proportional representation. Yet he also correctly observes that the problem facing the United States Constitution isn’t simply removing the filibuster, Electoral College, or other “blockages and constraints” that currently cabin democracy. He writes that it is naïve and misguided to prescribe reforms without “attending to reordering as directly as past generations of reformers did,” with explicit focus on how to build both a democratic structure and a democratic culture to support it. What we’re missing now is not ideas, but some sort of vehicle for making “a politically convincing case” for any of them.

In my view, Rhode Island’s vote in 2024 offers one explanation for why this vehicle appears so hard to locate today—and where we should look to find a way out of our current constitutional predicament. The thing that is most obviously missing from constitutional discourse today that was present during constitutional adaptations in the past is state constitutional conventions.

In each of Skowronek’s examples of when the Federal Constitution “adapted” to accommodate a more democratic society, the national government was not at the forefront of structural change but instead functioned as a lagging indicator. In the 1820s, when the national electorate expanded to accommodate virtually all white men, it did so because states were expanding their own electorates by removing voter qualifications and restructuring state governments to accept mass participation. In the 1860s, when Congress sought examples of what a true “republican” government should look like, it modeled its antidiscrimination and voting-rights legislation on what some Northern states were already doing. In the 1910s, the Nineteenth Amendment followed the full or partial enfranchisement of women in dozens of states. Even the “rights revolution” of the 1960s didn’t come out of nowhere but followed a long history of state constitutional conventions and amendments that enshrined the right to vote alongside environmental rights, labor rights, and sex equality.

These sorts of changes in state constitutions did not cause subsequent changes in the Federal Constitution. But they were each the product of organized movements that grew and built power from smaller victories. State constitutions tend to be far easier to amend, both culturally and structurally, than the Federal Constitution. They reflect Thomas Jefferson’s argument that “the earth belongs always to the living generation,” and therefore all constitutions should allow future generations to decide for themselves how to structure their own society. Many state constitutions originally embodied his idea by mandating constitutional conventions every twenty years. This idea is why Rhode Island and thirteen other states continue to hold referenda on the question.

Employing conventions and other methods of amending state constitutions, groups of workers and disenfranchised communities have shown the rest of the country how transformations that might seem radical can be folded within the American tradition. Conventions in particular focus public attention on a specific, concrete question: what should our government actually look like? That question gives movements a clear target to mobilize around, forces communities to engage seriously with the substance of democratic governance, and generates organizing capacity that has historically proven transferable to the federal level.

But in recent decades, lawyers, especially on the left, have increasingly viewed conventions with skepticism. Since the 1970s, the organizations that once sought to change constitutions through mass politics have put their faith in courts to secure political victories.

Consider what happened in Rhode Island in 2024. No one campaigned for the ballot question on whether to hold a constitutional convention. But a coalition led by the ACLU and state labor unions still opposed it. They spent tens of thousands of dollars warning that a convention “could be disastrous for Rhode Islanders’ rights and liberties.” They noted that a constitutional convention “is controlled by the majority,” and therefore was “almost guaranteed to not consider the rights of minorities.” In a state where Democrats outnumber Republicans 3 to 1, the coalition warned that a convention would leave abortion access and LGBTQ+ rights “at risk.”

Yet as Skowronek’s book amply demonstrates, these sorts of political victories are always “at risk,” even if one believes they are currently protected by courts or constitutional text. To literally campaign against mass politics at the state level—to fear every majority, including one politically aligned with you—is to reject the very premise of democracy and announce that the world around us is the best we can hope for. If a state like Rhode Island refuses even to consider how it might improve upon the federal structure amid a clear breakdown among federal institutions, it is difficult to imagine what would push Congress to do so on its own initiative.

What Rhode Island’s experience reveals is that the greatest obstacle to constitutional renewal is the refusal of those who believe in democratic change to trust democratic processes. The movements that remade American government in the past did not begin by asking courts to protect them from majorities. They organized, persuaded, won, and demonstrated that constitutional adaptation was both possible and necessary. Until leaders emerge who are willing to make that case again—at the state level, before real electorates, in contests with genuine stakes—we will go on producing “ideas aplenty” and democratic renewal not at all.

Nikolas Bowie is the Louis D. Brandeis Professor of Law at Harvard Law School and can be reached at nbowie@law.harvard.edu.

Confronting Current Constitutional Dysfunctions: Civic Constitutionalism and the Adaptability Paradox

2026-04-04T09:30:00.001-04:00

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

Elizabeth Beaumont

In this third and final post of the series, I argue that today’s constitutional stresses stem less from the “unbinding” Stephen Skowronek identifies than from a broader constellation of post-inclusion challenges—extreme polarization, economic inequality, technological disruption, and deliberate political choices that have strained democratic governance across many systems. Skowronek’s framework illuminates real challenges with the conflicts that can arise from democratization in a highly pluralist constitutional democracy, but it risks overstating the civil rights revolution as the primary cause while underestimating alternative sources of constitutional grounding. The history of civic constitutionalism suggests a different possibility than Skowronek’s bleak prognosis: a contentious yet regenerative process of civic struggle and consensus-building.

There is growing agreement among legal and political scholars that the U.S. is facing a serious constitutional crisis, with many contributing factors identified (see, e.g., Ackerman 2010, Mann and Ornstein 2012, Levitsky and Ziblatt 2018). Skowronek's analysis offers a different, older, and counterintuitive diagnosis rooted in American constitutional development: bounded resilience, serial adaptations that progressively loosened the constitutional framework, and the democratic breakthroughs of the civil rights revolution that ultimately "unbound" the Constitution from its earlier stabilizing exclusions (21-22). This provocative and important argument demands continued engagement.

Yet as insightful and impressive as Skowronek’s account is, it functions less as a complete explanation than as one significant strand in a more complex and multicausal account. Reexamining the civil rights revolution shows that it produced a partially successful constitutional adaptation through the rise of a civil and social rights state, complete with new institutional mechanisms, auxiliaries, and meaningful (if incomplete) cross-racial consensus. Many contemporary dysfunctions stem from subsequent forces– economic inqualities and dislocation, 9/11 and its aftermath and deliberate expansions of executive power, the internet and digital revolution— that are not reducible to civil rights-era “unbinding” or fallouts. That a similar pattern of democratic conflicts and strain is visible across countries with markedly different constitutional structures and developmental trajectories suggests that bounded resilience is at most one dimension of a more complex and multicausal crisis (see, e.g., Levitsky and Ziblatt 2018, Nord et al 2025).

Structural Tensions and Post-Inclusion Stressors

The U.S. constitutional system contains deep tensions around democracy. At the time of its adoption, it was the most democratic in existence, in terms of its system of popular representation. Yet it was also designed with numerous undemocratic elements that prevented or created barriers to broad or equal democratic inclusion, representation, or influence over governance. Some of these problematic features have been nullified or transformed through pushes for greater inclusion – such as the three-fifths clause and the indirect election of senators – while others remain, contributing undemocratic and dysfunctional politics, such as the Electoral College, equal Senate representation, life tenure for Supreme Court justices, and the high bar for formal constitutional amendment (see, e.g. Dahl 2003, Levinson 2006). These structural features, combined with pathologies such as the campaign finance system, surely bear some responsiblity for current political dysfunctions, and should be widely debated as targets for constitutional reform. Yet Americans are too often encouraged to view the founders’ Constitution as beyond critique or reform rather than to learn about and debate its “fault lines,” examine how important and transformative struggles for constitutional change have been for our past, or consider how civic mobilization could lead to constitutional reform in the present (see, e.g., Levinson 2020, Beaumont 2023).

Alternative Sources of Constitutional Grounding

Skowronek's portrayal of an “unbound” Constitution highlights the risk that full inclusion could strip away grounding for constitutional principles, leading to "mutually unacceptable futures" without shared interests. But this framing rests on a particular, and contestable, understanding of what constitutional grounding requires. Skowronek's conception of bounded resilience depends on a specific kind of grounding: social exclusions, structural constraints, and agreements about what lies beyond the reach of national governance. Historically, these groundings were unjust, as Skowronek acknowledges, but he sees them as functionally stabilizing. This assessment, however, may underestimate how such exclusions invited civic conflicts and constitutional challenges that ultimately destabilized earlier settlements. In U.S. history, maintaining exclusions and inequalities, such as those based on race, gender, class, or religion, may have provided some limited or temporary stabilization, but also often fueled conflict and destabilized constitutional orders, as seen in the lead-up to and outbreak of the Civil War, labor unrest, and civil rights struggles.

But constitutional systems can be grounded in other ways: through a shared appreciation of the trajectory of constitutional history, the accumulated meanings and practices forged through successive waves of civic vision and struggle, and the political and social landmarks that have emerged from those, ranging from pivotal amendments and statutes to evolving civic norms and public understandings of core principles.

Skowronek's portrayal of the Constitution as having become merely an "abstract matrix of possibilities" underestimates how the accumulated history of constitutional debate and democratic achievement provides concrete reference points for contemporary constitutional contests (122). The abolitionists' reinterpretation of equal protection, the suffragists' arguments about democratic inclusion, the civil rights movement's vision of equal citizenship are all constitutional resources that can help inform and ground contemporary debates. As Jack Balkin (2011) argues, each generation's constitutional struggles build on and respond to the accumulated meanings of prior generations rather than starting from scratch. Far from a void, this legacy, built through successive civic struggles, social movements, political leadership, and institutional innovations, offers resources for grounding constitutional principles in broader and more democratically legitimate terms (Beaumont 2014).

Civic Constitutionalism as a Regenerative Path

The question the adaptability paradox ultimately presents, then, is not whether constitutional grounding is possible in a fully inclusive polity, but what type of grounding is possible and through what processes it may be forged. One crucial mechanism for regrounding is civic constitutionalism– the ongoing work of civic actors and social movements in reframing constitutional principles, building new coalitions, and forging new constitutional common sense.

A deep concern with Skowronek’s framework of bounded resilience and an adaptability paradox, coming to a head with the civil rights revolution, is its implication that the American system of constitutional democracy cannot successfully move beyond its roots in a highly exclusionary political order. In contrast, participants in civic struggles, from Anti-Federalists to white working men and laborers, from abolitionists, freedmen, and suffragists to feminists and LGBTQ+ activists, have insisted that these changes were not only possible, but necessary to realize the system’s own principles of popular sovereignty, equal citizenship, and justice (Balkin 2011; Beaumont 2014).

The current dysfunctions of the American constitutional system no longer include legalized social exclusions, but they do include persistent democratic inequalities structural problems and multiple post-inclusion stressors: extreme partisan polarization and intensification of zero-sum conflict; rising economic disparity and insecurity that fuel resentment and populist mobilization; the expansion of executive power and presidentialization of politics (accelerated after 9/11 and further entrenched in subsequent administrations); and the distorting effects of structural features such as gerrymandering, the Senate’s malapportionment, the Electoral College, and an increasingly politicized judiciary. While these problems have been intensified by the constitutional changes and social conflicts that followed the civil rights revolution, as Skowronek's framework pushes us to recognize, they are not reducible to that “unbinding.” They also reflect ongoing institutional tensions, technological and economic transformations, and deliberate political choices that have strained constitutional democracy in the U.S., and in many other countries.

…..

Skowronek suggests a tragic dilemma at the heart of American constitutionalism: if constitutional resilience and stability have depended on maintaining some social exclusions, and if sweeping democratic inclusion prevents stable adaptation, then we appear caught between two incompatible goals: a fully inclusive democracy, or a constitutionally stable one. Which do we prioritize? Or, how can we make our way toward having both? Skowronek’s prognosis is bleak, offering “little reassuring to cling to” (3). He warns that while “the priority of democracy has become unassailable,” if “American democracy has become nothing more than a cold civil war, and the Constitution is but a conduit for contestation, the future looks rocky indeed”(116). Yet history points toward a different possibility. The very civic actors and social movements that have repeatedly sought to refound the constitutional order, even though it seemed impossible to change, suggest a path forward: a continued contentious yet regenerative process of civic struggle and consensus-building. Both are needed to align the Constitution with the more expansive democracy we have become– and the one we might yet come to be (Beaumont 2014). The question is whether we can summon sufficient civic energy and effective leadership to meet the current dysfunctions.

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

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Smith, Rogers M., and Desmond King. 2024. America’s New Racial Battle Lines: Protect versus Repair. Chicago: University of Chicago Press.

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Prosecutorial Tanking

2026-04-03T09:30:00.003-04:00

There are two standard explanations for the recent high-profile refusals by grand juries in DC to return indictments. One is that they are engaged in a kind of resistance to what they see as executive overreach. Another is that the prosecutors are just incompetent.

But there's a third possibility. Perhaps prosecutors are deliberately making a weak presentation. Think about that for a second. Say you're told to seek an indictment in a case that is weak or unjustified. One option, given that grand jury proceedings are secret, is to just go into the room and try to lose. Then you can come out and tell your superior: "Look, I tried to get the indictment that you wanted, but the grand jury refused." Unlike NBA teams that tank, no one will ever know the truth.

Reexamining the Civil Rights Revolution: Partial Adaptation and the Rise of a Civil and Social Rights State

2026-04-03T09:30:00.001-04:00

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

Elizabeth Beaumont

My first post outlined Stephen Skowronek’s adaptability paradox and his sobering claim that the civil rights revolution ruptured the Constitution’s bounded resilience. On his telling, broad inclusion dissolved the social exclusions that once enabled stable constitutional reorderings, leaving power and authority reconfigured in ways that magnified rather than managed conflict.

Here I undertake a reassessment of the civil rights revolution of the 1960s–70s. I argue that it can be seen as a partially successful adaptation, producing new institutional mechanisms and “auxiliaries” in the form of a “civil and social rights state,” alongside meaningful if contested cross-racial consensus on commitments to political inclusion and equality. Landmark statutes, Great Society social programs, administrative enforcement, litigation and judicial decisions, and civic mobilization contributed to significant, if incomplete, reordering.

For Skowronek, the civil rights revolution marks the culmination of the adaptability paradox, and the point at which the constitutional system's bounded resilience was dissolved by broad democratization. As the body of "We the People" expanded toward broad inclusivity, encompassing not only white men, but African Americans, women, Indigenous peoples, racial and religious minorities, disabled people, LGBTQ+, and others, the U.S. constitutional system, on his account, lost its capacity for regeneration and spiralled into dysfunction. Although he wholeheartedly supports the civil rights revolution’s goals of inclusion and equality, Skowronek’s analysis of its political and constitutional consequences is almost entirely negative, seeing them as the root causes of destabilization. It can be easy to adopt a purely celebratory or uncritical stance toward the civil rights revolution, but Skowronek’s evaluation overcorrects in the other direction – underestimating the achievements and institutional innovations, overlooking the partial consensus achieved, and placing too much blame on the civil rights era for the current crisis. Reconsidering this history suggests a mixed picture, one that included many of the elements Skowronek associates with successful constitutional adaptation through the party state and administrative state.

The Adaptability Paradox suggests three criteria for successful adaptation other than maintenance of social exclusions: new institutional mechanisms and arrangements (auxiliaries), constitutional common sense (minimum consensus), and connection to constitutional essentials (credible claims of fidelity). Skowronek posits that past reorderings leading to the party state and administrative state achieved these, while the civil rights revolution failed (3, 10). I argue instead that the civil rights revolution partially met each of these criteria, and gave rise to a partly successful adaptation through a new “civil and social rights state” that garnered important, if contested and incomplete, political consensus and that "pay[ed] homage to the original" by grounding transformative demands in the Constitution's own text and principles, invoking equal protection, due process, the Commerce Clause, and the Reconstruction Amendments (17-18). Although the rise of civil and social rights in the 1960s and 70s (and the new apparatuses for implementing and enforcing them) are often treated as distinct innovations, we can also see that their parallel initiation was not coincidental (see, e.g., Bok 1992). Rather, it involved intentional institutional responses to the civil rights revolution’s challenges to racial inequality, economic disparity, and extensive poverty in the U.S., an adaptation process in which Congress, President Johnson, key administrative agencies, and federal courts all played roles.

The most famous political dimension of this was a series of landmark civil rights statutes, particularly the Civil Rights Act of 1964 and the Voting Rights Act of 1965, which prohibited racial discrimination, protected voting rights, and created both new enforcement and incentive mechanisms, including Title VI of the Civil Rights Act, created a nondiscrimination requirement that automatically applied to all federally funded programs. This legislation contributed to new executive agencies and offices to enforce these rights (such as the Equal Employment Opportunity Commission and Department of Justice Civil Rights Division, and a network of federal agencies charged with implementing and enforcing new civil rights requirements across the federal system) (see, e.g. Graham 1990).

But a second, overlapping dimension of this adaptation of governing arrangements and relations involved creating “Great Society” social programs. President Johnson and Congress designed these programs to address poverty and inequality more broadly, but also included strategic tools for implementing civil rights through mechanisms of federal “carrots and sticks” over state and local entities. Medicare, the first nationalized health insurance (but limited to older Americans), created requirements for medical providers to comply with civil rights legislation, making it a civil rights vehicle as well (Reynolds 1997; Smith 2005). A series of new education laws and programs, too, responded to the civil rights movement by including intentional synergies for enforcing civil rights across K-16 schools, including significant new funding for K-12 schools and universities, and the launch of free preschool and a school breakfast program, all requiring recipient schools to adhere to civil rights requirements (Elementary and Secondary Education Act, the Higher Education Act of 1965, Project Head Start (1964), and the Child Nutrition Act (1966)) (Beaumont 2015, 974-975, Superfine 2013, Cross 2004).

We can see how the deliberate pairing and intertwining of civil rights enforcement with universally available social programs and new federal funding for local education and communities was itself an innovative constitutional strategy. It encouraged cross-racial buy-in and what Smith and King (2014) have termed “racial policy alliances” to support the new constitutional order (see also Brown 1999, Quadagno 1994) Extending new benefits — Medicare, education funding, food assistance — to Americans of all races and classes while simultaneously using many of these benefits to leverage civil rights compliance and integrate segments of American life, helped construct a constitutional coalition that commanded broad popular support across racial lines and for a time across partisan ones.

The emerging civil and social rights state also involved a greatly expanded role for the judicial branch and courts. Landmark Warren Court decisions, epitomized by Brown v. Board of Education (1954), began reinterpreting equal protection and other constitutional principles in line with arguments advanced by civil rights movements at a time when African Americans were widely prevented from voting. Even after the Voting Rights Act improved formal access to the ballot, because African Americans were a political minority, and the Supreme Court and federal courts were sometimes more receptive than legislatures. This use of judicial independence encouraged sustained litigation campaigns, and inspired similar legal strategies by women and other historically excluded and minority groups (Epp 1998, Anderson 2006, Mayeri 2011).

While Supreme Court decisions receive far more attention, it may have been still more consequential that the political implementation of civil rights created private rights of action as a new, “decentralized” enforcement instrument. As Sean Farhang (2010) suggests, this innovation helped produce what could be termed a “litigation state” operating within or alongside the civil and social rights state. Farhang demonstrates that Congress deliberately included private litigation in the Civil Rights Act of 1964 (and in much civil and social rights legislation that followed) largely because it did not trust the President or administrative agencies to enforce these laws. This institutional innovation and its growth was in keeping with anti-statism and reluctance to further expand national bureaucracy, and it addressed some major failures of the New Deal settlements and the administrative state regarding racial inequality. It was also incentivized by inherited constitutional structures of federalism, separation of powers, and an independent judiciary. Shifting these features allowed Congress to enable protection for many rights – from prohibitions on racial discrimination in schools to sex discrimination in workplaces to rights to medicare or clean air – allowing new ways for rights to “work” by providing tools for litigation and legal mobilization that could be used in any community without depending on the executive branch or states (Burke 2002, see also Epp 1998, McCann 1994, Kagan 2001).

It is common now to criticize the problems with “the litigious state” and recognize the many limits of the civil and social rights state (just as there are many criticisms of problems with the earlier party state and administrative state Skowronek holds up as success stories)(see, e.g. Rosenberg 1991, Fiorina 2009). Skowronek deepens the critiques by faulting the judicial and legal adaptations as sources of “judicial supremacy” and “adversarial legalism” that helped unbind the Constitution (125-134, 166). However, incorporating these mechanisms into the Civil Rights Act of 1964 and much subsequent rights legislation can be viewed as pragmatic, if not necessary, extra-constitutional innovations for a fragmented democracy. Without private enforcement mechanisms, civil rights protections likely would have remained largely unenforceable promises, subject to changes in presidential support, shifting administrative priorities, and resistance from state and local governments. As Farhang (2010) shows, the judicialization of civil rights enforcement was a deliberate and “functional” institutional choice in a fragmented political system – an extra-constitutional innovation that gave civil rights enforcement a durable foundation independent of shifting executive priorities. In Skowronek’s own terms, this can be understood as a partially successful constitutional auxiliary.

We can also see that the new civil and social rights state incorporated important consensus-building, stabilizing, and constraining elements aimed to foster cross-racial consensus and constrain the scope of conflict. The reordering and its new legislation and government programs were framed around principles of equal opportunity, but emphasized ideas of “color-blind equal opportunity” and “democratic opportunity,” rather than race-specific repair (Smith and King 2024). This approach encouraged cross-racial buy-in, while also providing a limiting principle that helped contain the most expansive demands for social repair and redistribution, thereby enabling a broader political coalition for the new constitutional order. These consensus-building elements help explain the substantial public support for important elements of the civil and social rights state that polling data suggests long continued.

The civil rights and social rights reconfiguration also achieved significant areas of political consensus that Skowronek does not acknowledge. For instance, after advocating and winning passage of the Civil Rights Act and running on a Great Society platform emphasizing some of the civil and social rights championed by the Civil Rights Movement, President Johnson was elected over Goldwater with 60% of the popular vote and 90% of the electoral vote, victories comparable to Roosevelt's landslides of 1932 and 1936. And national surveys indicated substantial, albeit uneven, public support for key elements of the new civil and social rights state. For the sweeping 1964 Civil Rights Act, October 1964 Gallup polls indicated 58% approval (31% disapproval); the 1965 Voting Rights Act had 76% favor in April 1965 (see Gallup Organization, 2020). Skowronek suggests a ‘precipitous collapse’ of Johnson’s consensus, but both in terms of subsequent civil rights legislation – often passed with some bi-partisan support – and in terms of subsequent public opinion surveys, some areas of consensus were sustained (139). For instance, in 2014, 80% of respondents viewed the Voting Rights Act as 'mostly good' for the country (Pew Research Center). And white opposition to segregation plummeted from around 66% in the 1960s to 4% in the 1980s (Smith and Sheatsley, 1984). As recently as 2008, majorities of whites and Blacks said the civil rights movement still impacts society positively (Pew Research Center). While significant divisions persisted on many issues, there are indications of some increase in public buy-in and at least minimal consensus for key issues and principles at stake in the civil and social rights reordering, including racial equality, voting rights, equal protection, and desegregation.

Enduring public support for many Great Society programs across partisan lines also suggests the civil rights and social rights reordering achieved a significant degree of consensus in the general population. Despite polarization on many issues, Medicare enjoys the support of roughly 80-84% of Americans, including large majorities of Republicans (KFF; NAMI/Ipsos 2025); SNAP is viewed favorably by 64-78% of Americans across party lines (FMI 2025; Data for Progress 2025); Head Start commands the support of 72% of voters across the political spectrum, including bipartisan support in Congress (UpONE Insights/FFYF 2025); and free school breakfast and lunch programs are supported by 63-74% of voters, including majorities of Republicans (FRAC 2021; Data for Progress 2021).

To be sure, the adaptations to the civil rights revolution had mixed outcomes, positive and negative, intended and unintended. New legislation and mechanisms for civil rights did help empower marginalized groups and provided new avenues for enforcement, but they also further increased national power, sparking debates over federalism and judicial power. Indeed, the significant limitations of the civil and social rights state are often critiqued by those who believe much more should have been done to address slavery and the social and economic harms that national, state, and colonial-era government had committed or legally sanctioned against African American since the 17th century (see, e.g. Bell 1992, Carbado and Gulati 2013, Darity and Mullen 2020). From the perspective of many African-Americans and other critics, the adaptations to the civil rights revolution have functioned very effectively to “stabilize” the limits of the civil and social rights state and exclude controversial issues related to race, slavery, poverty, and economic inequality. But Skowronek treats civil rights as a failed adaptation, even as the two successful adapations to democratic inclusion he identifies– the party state and the administrative state – could also be seen from the reverse perspective, as having contributed to distortions with the functioning of constitutional democracy, some of which persist into the present. Here, we might think of some parallels in unintended outcomes: the New Deal's administrative expansion generated the anti-statist and anti-regulatory critiques that fueled the conservative movement of the 1970s and 1980s; the civil rights revolution's expansion of rights and judicial enforcement generated critiques of adversarial legalism and judicial overreaching and contributed to the rise of the contemporary conservative movement. In both cases, backlash can be seen as a predictable political response to transformative constitutional change rather than evidence of failed adaptation.

We can also think of some of the limitations of the party state as a stabilizer, and its problematic outcomes for constitutional democracy. Skowronek credits it with managing incorporation of white male suffrage and stabilizing a new constitutional order, but the party state ultimately failed to prevent the slide into the Civil War within two decades of its emergence. This adaptation also gave rise to institutional arrangements with problematic consequences, including the rise of primaries and gerrymandering. The primary system, for instance, was not only long used to exclude some from voting, particularly African Americans and other minorities, but its later expansions contributed to polarization because primaries tend to empower the most extreme and motivated partisans (Fiorina 2009). Party leaders in state legislatures have long used their power to gerrymander to create “safe” seats, but the growth of this capacity alongside the party state has increasingly allowed parties and politicians to ‘choose their voters,’ rather than voters choosing representatives, distorting legislative ideology and reducing responsiveness (Stephanopoulos 2017). The development of these features of the party state, originally designed to manage the inclusion of white male suffrage while suppressing divisive issues like slavery, illustrate how “successful” adaptations can also embed structural distortions that continue to undermine democratic accountability and responsiveness into the present. Thus, while Skowronek paints a sharp contrast between Civil Rights Era constitutional outcomes and the Progressive and New Deal era political settlements, it seems more plausible to see all of these struggles and settlements as leading to partial consensus and incremental buy-in, subject to ongoing divisions and backlashes.

Another significant limitation of Skowronek’s assessment of the civil rights revolution comes from his top-down, state-centered approach. This perspective does not recognize the role of civic groups and social movements for pushing for particular areas of follow-through, nor does it consider how efforts to implement a new constitutional order inevitably face push back, reactive backlash, and often protracted tug-of-war involving opposing civic forces, political elites, and parties. A closer look at the civil rights era groups and movements suggests that Skowronek overlooks the degree to which they not only pushed for constitutional rights, but actively worked to gain wider acceptance and segments of support for commitments to inclusion and equality.

Civic reformers have repeatedly served as “civic founders” or “co-founders” of constitutional transformations, not merely applying pressure from outside the system but also actively remaking constitutional meanings through sustained civic mobilization (Beaumont 2014). They developed and advocated new understandings of popular self-governance, rights, and citizenship that eventually reshaped the constitutional order, and, in the process they developed new civic associations and social relations (Beaumont 2014). The civil rights, feminist, and LGBT rights movements of the 1950s through the 1980s followed this general pattern. Each movement invoked existing constitutional principles (equal protection, due process, the guarantees of republican government) and strategically redeployed them to advance new claims. Each also created new civic organizations, including legal advocacy groups and “support structures” that undertook organized litigation campaigns (the NAACP Legal Defense Fund, the ACLU Women's Rights Project, LGBT legal advocacy organizations) contributing to a civic infrastructure that helped build new constitutional meanings and rights from below (Epp 1998, Beaumont 2014, Mayeri 2011, Andersen 2006, Francis 2014).

Crucially, these movements did not simply assert constitutional claims. They also worked strategically to build broader political and social consensus around those claims, seeking to bring along not just movement activists but legal elites, legislators, sympathetic publics, and eventually significant portions of both political parties. Scholars have shown how the movements of the civil rights revolution worked strategically to build consensus around racial equality. Mary Dudziak (2000), for example, demonstrates that the civil rights movement strategically connected its goals to American democratic ideals and Cold War imperatives, building a broader consensus for reform that extended beyond the movement. Additionally, the NAACP's decades-long campaign against lynching and mob violence, documented by Megan Ming Francis (2014), shows how civic organizations built consensus through sustained public advocacy, legislative lobbying, and litigation long before the landmark legislation of the 1960s. Likewise, Serena Mayeri (2011) shows how the feminist movement strategically built on civil rights precedents to develop a new constitutional consensus around sex equality, explicitly connecting gender and race discrimination claims to broaden their coalition and constitutional legitimacy. In Skowronek’s own terms, such civic mechanisms – reframing constitutional principles, building coalitions, creating new civic and legal organizations, and connecting rights claims to broadly shared values– can be understood as important “auxiliaries” that helped carry constitutional reordering forward by fostering broader consensus and supporting implementation amid backlash.

None of this is to say that the civil rights revolution achieved either the full aims of the movements that energized it or conditions of full constitutional consensus and stability. It has not, and disagreements over the civil and social rights state’s commitments to inclusion and equality have clearly contributed to the conflicts of the present era. Yet attributing the current political morass primarily to failed adaptation following the civil rights revolution overreaches in at least two important respects.

First, as we have seen, Skowronek’s account overlooks the pragmatic innovations and partial successes of the civil and social rights state and the partial consensus it was able to garner around core commitments to political inclusion, equal protection, as well as some social welfare rights (particularly Medicare and Medicaid, food stamps, school breakfast and lunch).

Second, Skowronek’s emphasis on the civil rights revolution’s ruptures to past settlements and incomplete adaptation as the root cause of present political and constitutional problems leaves much overlooked. It largely discounts the role of many subsequent forces and deliberate political choices that operated largely independently of the 1960’s-70’s constitutional legacies and are not reducible to bounded resilience — from 9/11 and its aftermath, to the internet and digital revolution, to rising economic dislocation and inequality. For instance, Skowronek attributes both judicialization and presidentialization of constitutional politics to systemic disruptions and loss of adaptive capacity following the civil rights revolution (203). But there is persuasive evidence that the greatest expansion of modern Presidential power did not emerge from or build directly on the civil rights revolution’s adaptations – which had helped to significantly expand civil liberties as well as equal protection. Rather, it burst forward after the 9/11 terrorist attacks, with President George W. Bush and his administration deliberately acting to increase presidential power and remove post-Watergate constraints, with subsequent presidents building on this new opportunity (Savage 2007, Goldsmith 2007). This significant reshaping of separation of powers reflected the operation of forces and political choices not satisfactorily explained as mere downstream effects of 1960s-70s “constitutional unbinding.”

Thus, while the civil rights revolution undeniably transformed prior arrangements of governmental power and prior constitutional settlements and contributed to contemporary stresses, a more complete account must recognize subsequent developments as significant drivers in their own right. In the final post, I examine the multicausal post-inclusion stressors we face today and argue that civic constitutionalism offers a path toward renewed grounding in a broadly inclusive polity.

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

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

2026-04-02T09:30:00.001-04:00

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.

The Material Foundations of American Constitutional Development

2026-04-01T09:30:00.002-04:00

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).

Jurisdiction, Domicile, and the Ratio Decidendi of Wong Kim Ark

2026-03-31T19:45:00.004-04:00

When the Supreme Court hears oral argument tomorrow in Trump v. Barbara, Solicitor General John Sauer will try to persuade the Justices that a child is born “subject to the jurisdiction” of the United States only if the child’s parents are domiciled in the United States at the time of its birth. Relying on this premise, Sauer will argue that President Trump’s January 2025 Executive Order, which effectively restricts birthright citizenship to the children of citizens or lawful permanent residents, is justified by this domicile requirement.

The Justices should not buy this novel argument. As Marty Lederman and I explained in this essay, the Government’s domicile theory is unconvincing and riddled with fallacies. Here I will add two simple observations to that analysis.

First, the Government’s domicile theory has essentially been made up for the purposes of this litigation. For over 125 years, the American law of birthright citizenship has been settled. Millions of Americans have been recognized as natural-born citizens without anyone questioning that status on the basis of their parents’ domicile. And throughout this litigation, the Government has not pointed to a single judicial decision during that time frame in which anyone was denied U.S. citizenship on this basis.

The most significant scholarship on the history of American citizenship yields a similar lesson. The Government’s domicile theory plays virtually no role in the leading scholarly treatment of the subject, James Kettner’s The Development of American Citizenship, 1608-1870 (1978). The same is true of Peter Schuck and Rogers Smith’s book, Citizenship Without Consent (1985). The first real glimmers of the Government’s domicile theory, as it has now come to be framed, can be found in two student notes published in 2010 and 2015, respectively. Yet even those articles did not formulate the theory in the way the Government now does.

Second, the SG’s claim that domicile was “central” to the Court’s landmark decision in United States v. Wong Kim Ark (1898) is an obvious overreach, which cannot be squared with the basic structure and ratio decidendi of that case. To begin with, most of the 22 references to the word “domicile” in Justice Gray’s majority opinion do not, in fact, lend support to the Government’s theory, and many of them directly contradict it. See, for example, the four uses of that term on pages 656-57 of Gray’s opinion (with respect to Udny v. Udny) and the three uses of the term on page 666 (with respect to the state of European law at the time of the adoption of the U.S. Constitution).

More importantly, none of the seven federal cases (Charming Betsey, Inglis, Shanks, McCreery, Levy, Dred Scott, and Rhodes), four state cases (Gardner, Kilham, Manuel, and Lynch), four executive department opinions (Marcy, Black, and two by Bates), or two commentaries (Kent and Binney) that Justice Gray drew upon in Part III of his opinion (pp. 658-666) to extract the fundamental rule of citizenship that existed before the adoption of the Citizenship Clause in Part IV (pp. 674-675) treated domicile as a necessary condition of birthright citizenship. Yet the Court in Wong Kim Ark held (pp. 675, 682), and the SG does not dispute, that the Citizenship Clause was designed to incorporate that pre-1866 U.S. rule, and not to deny citizenship to anyone who would have been entitled to it before the Fourteenth Amendment was framed and ratified. As Gray emphasized, the Clause was “not intended to impose any new restrictions upon citizenship, or to prevent any persons from becoming citizens by the fact of birth within the United States who would thereby have become citizens according to the law existing before its adoption” (p. 676).

On page 34 of its topside brief, the Government quotes from a key paragraph in Wong Kim Ark, in which Gray applied the same fundamental rule to the stipulated facts of the case, including the oft-repeated fact that Wong Kim Ark’s parents were domiciled in the United States at the time of his birth (p. 693; see also pp. 652, 653, 705). But the SG’s brief artfully omits the words that Gray placed at the beginning of that paragraph: “The foregoing considerations and authorities irresistibly lead us to these conclusions.” As indicated, those sources do not connect in any meaningful way with the Government’s domicile theory. In the sentence immediately following the quoted passage, also missing from the SG’s brief, Gray clarified that the allegiance to which the passage refers is the “temporary and local” allegiance that anyone owes “so long as he remains within our territory.” Furthermore, Gray then confirmed that even non-domiciled aliens are “completely subject to the political jurisdiction” of the United States, drawing upon Daniel Webster’s famous report in Thrasher's Case (p. 693). Finally, Gray concluded this key paragraph by citing United States v. Carlisle, Calvin’s Case, and specific passages from Hale’s Pleas of the Crown and Blackstone’s Commentaries, none of which lends support to the Government’s domicile theory (pp. 693-94).

In Capital Traction Company v. Hof, 174 US 1, 12 (1899), decided one year after Wong Kim Ark, and also written by Justice Gray, the Court described the ratio decidendi of a case as “the line of thought pervading and controlling the whole opinion.” By that measure, the SG’s contention that domicile was “central” to Wong Kim Ark is a failure. And by that measure, the Executive Order seems clearly unconstitutional.

The Era of Democratic Dissatisfaction

2026-03-31T09:30:00.022-04:00

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

Richard H. Pildes

We live in an Era of Democratic Dissatisfaction. Over the last 10-15 years, large numbers of citizens have been continuously expressing discontent, distrust, alienation, anger and worse with governments across nearly all Western democracies, no matter which parties or coalitions are in power. One expression of this dissatisfaction is that democratic governments have become more fragile and unstable. In just the past couple years, the governments in Germany, France, Portugal, the Netherlands, and Canada have collapsed prematurely, forcing those countries to hold snap elections. Spain has been forced to hold five general elections in the last ten years, in the search for a stable governing majority; for the same reason, the U.K. held four national elections from 2015-2024 and might well be careening to another one, long before the presumptive five-year term for the current government comes to an end.

Across nearly all Western democracies, many citizens have come to feel their systems are no longer delivering for them on the issues they care most urgently about. Four aspects of the way political competition and governance is being transformed as a result illustrate the turbulence of democracy in this era. First, the traditional center-left and center-right parties that had dominated politics in nearly all these countries since World War II have been collapsing. When these parties were strong, they were able to form governing majorities either on their own or with one junior partner; as a result, government could more readily deliver on the preferences of electoral majorities. Second, the voters these parties have been hemorrhaging have moved to insurgent and more extreme parties of the left, right, or more difficult to characterize ideologies. But it is the new right parties, in particular, that have emerged most significantly as an alternative to the traditional parties and political leaders (the Reform Party in the U.K., the National Rally in France, the AfD in Germany, the Brothers of Italy, the Chega in Portugal, the Party for Freedom in the Netherlands, the Finns Party in Finland, the Progress Party in Norway, the Sweden Democrats, and others). Across 27 European countries, these new right parties barely registered in 2010, but remarkably now in the aggregate attract the same vote share as the traditional center-left and center-right parties.

Third, young voters are particularly dissatisfied with democratic governments across nearly all these countries. In many countries, these new right parties are the most popular among younger voters; where they are the second most popular, it is more extreme parties of the left that draw the most support among younger voters. Fourth, party politics throughout the West had undergone the greatest realignment since World War II, as issues of what we might call national identity have become as important or even more so than economic ones, with working-class voters becoming the base of parties on the right, while the parties of the left have become the province of more highly educated, wealthier voters. I have chronicled these developments in The Decline of Political Authority: Legal and Political Challenges in Western Democracies, 2015-2025 and Political Fragmentation in the Democracies of the West.

Steve Skowronek’s intriguing and masterful book, The Adaptability Paradox, focuses on the challenges to American democracy in this era. He doesn’t spend a lot of time defining those challenges but nods to factors such as extreme polarization, the breakdown of long-standing norms of governance, and a general sense of broad dissatisfaction with government’s seeming inability to deliver effective responses on the major economic and cultural issues roiling the nation.

In his “historical-structural” approach, he argues that the challenge American government has faced perennially is the need to adapt to the ever increasing demands of an expanding electorate, in the face of a rigid Constitution whose formal institutional structures of governance have not changed and cannot easily be changed. In the past, he argues, that challenge has been met through extra-constitutional adaptations: in the 19^th century, the rise of mass political parties that integrated voter demands into a responsive government, and in the 20^th century, the emergence of the administrative state, which Steve argues did the same. His animating concern is that, in the era of full democratic inclusion that began with the 1965 Voting Rights Act and the rights revolution of that era more generally, we might no longer have the ability to innovate new structures – absent a new Constitution altogether -- to enable effective government that can also elicit broad consensus.

Steve’s book fundamentally raises the question of the relationship between institutional structures and political culture. How much is our unique institutional architecture of governance, which the Constitution birthed, a major cause of the democratic dissatisfaction that exists today; if we could just change those structures or invent some new mode of organizing the effective expression of today’s democratic demands, would we find the consensus Steve seeks? Or does our toxic, tribalistic politics and dysfunctional political process reflect profound cultural and political divisions and conflict that makes illusory the hope that there is some mode of “adapting” governance that would overcome these divisions. Steve’s conditions for successful adaptation are stringent: (1) adaption must satisfy the policy demands of our vast, heterogenous society; (2) maintain fidelity with the underlying “principles” of the Constitution; (3) generate widespread social buy-in.

Yet America politics over this past 10-15 years strongly resembles politics across most Western democracies. The same constant turbulence and dissatisfaction has been stirring our politics. Since 2000, in every election but two, partisan control of the House, the Senate, or the White House has changed hands, with significant likelihood this fall will continue that pattern. We have never had such an extended period of partisan churn. That pattern also expresses how sharply and closely divided the country has been over at least the past decade. Support for the major parties has plummeted; the combined approval rating for the two parties is the lowest ever recorded, while Gallup Polls calls this “The Independent Era” as self-identified independents now constitute over 40% of citizens. In our two-party system, this dissatisfaction gets expressed through the appeal of outsider candidates, whether Donald Trump or Bernie Sanders (an Independent who nearly unseated the Democratic Party’s most establishment candidate in 2016). The issues driving the new right parties in Europe have been channeled within the Republican Party, given our two-party system. The same income and education-based realignment of the parties of the left and right has taken place here. As in Europe, young voters are particularly attracted to more extreme options, whether the Democratic Socialists of America on the left or the post-liberal visions rising on the right.

I’m of two minds about the institutions v. culture question Steve’s book raises. At heart, I’m a scholar of institutions and an institutional designer. During this period of democratic dissatisfaction in the U.S., I’ve proposed a number of institutional reforms, ranging from the more practical to the less realistic, that I’ve suggested might play a role in Combatting Extremism: changing the structure of primaries, voting rules, the way we design election districts, campaign finance, or changes to the presidential nominations process. Others will take Steve’s book as support for more radical structural and institutional changes, such as abandoning the electoral college, changing the structure of the Senate, reducing the role of the Supreme Court, or other proposals.

On the other hand, I believe democratic dissatisfaction in the U.S. in this era has to be understood in the context of the pervasive dissatisfaction across nearly all Western democracies – regardless of their institutional structure. The U.K. has about as pure a majoritarian parliamentary system as any major country. No written constitution, no separation of powers, no meaningful bicameralism. Yet political alienation there is profound. Widespread disaffection with the Conservatives led to a Labour landslide in 2024, yet in little time, voters turned so strongly against Labour that its current leader, Prime Minister Keir Starmer, polls as the least popular British Prime Minister on record.

The current Fifth French Republic was specifically designed to empower a strong, independently elected President and a strong government. Its system of two-round elections was chosen to empower electoral majorities, as a rebuke of the Fourth Republic’s proportional-representation system, which was thought to have paralyzed French government. Yet France is close to ungovernable. In another variation, Germany uses a mixed-member parliamentary system that ensures proportional representation, with significant power residing in the individual states (the Länder). The prior, completely dysfunctional government was replaced in 2025; yet since then the Chancellor who had been elected, Friedrich Merz, has suffered the steepest decline in popularity, with his current “favorability” rating plummeting to -48%.

Most democratic governments in the West have been unable during this period to deliver significant economic growth and are riven with conflicts over the rise of national identity issues, including immigration. The technological revolution constantly disrupts democratic politics and weakens political authority. Steve Skowronek’s new book teems with arresting insights, but the question whether our current democratic struggles lie in our institutions, or our deeper political culture, remains open.

Richard H. Pildes is Sudler Family Professor of Constitutional Law at NYU School of Law and Co-Director, The Democracy Project,https://democracyproject.org/. You can reach him by e-mail at Rick.Pildes@law.nyu.edu.

Conscientious Objection and Anthropic

2026-03-31T09:00:00.009-04:00

Isaac Barnes May

Anthropic’s case against the government has a religious dimension. Anthropic filed suit against the federal government after the government’s threat to declare it a supply chain risk when the company objected to the use of its products in autonomous warfare and mass surveillance of Americans. Anthropic presented the government’s actions as coercion under the First Amendment. The case recently saw Judge Rita Lin issue a preliminary injunction against the government, noting this “appears to be classic First Amendment retaliation.”

Yet the case resembles not just prior cases about free speech, which Anthropic and the judge invoked, but also those on religion. When the rupture between the Pentagon and the company first became public, Anthropic’s CEO Dario Amodei released a statement declaring that the company “cannot in good conscience accede to their request.” Amodei’s invocation of conscience as core to Anthropic’s stand positioned the company as a kind of corporate conscientious objector. As such, it may be protected as religion under the Religious Freedom Restoration Act (RFRA).

A recent amicus filing in the Anthropic case by a group of Roman Catholic Moral Theologians and Ethicists hints at the broader religious implications of the current case, arguing that Anthropic’s position has correspondences with Catholic moral teaching on surveillance and the use of AI weapons. They rely on Catholic Just War Theory to argue, for example, that AI controlled autonomous weapons “by definition fails to meet the conditions for jus in bello required for acts of war to be morally licit in Catholic thought.” By refraining from working on these weapons, they argue Anthropic is “acting as a responsible and moral corporate citizen.” The company, the brief implies, is exercising conscience.

Over a decade ago, the Supreme Court in Burwell v. Hobby Lobby held that a for-profit corporation was protected by RFRA in exercising religion. Hobby Lobby, a craft store chain, could not be forced to provide health insurance coverage for contraceptives because of its owners’ religious objections. Justice Alito, in the majority opinion, even made clear that business practices “compelled or limited by the tenets of religious doctrine” were examples of religious exercise under RFRA. Legal academics worried that there would be a spate of corporate religious liberty claims, though relatively few cases of corporations using RFRA occurred. If there is a sincere religious objection to providing the Department of War with military AI, the government’s actions against Anthropic would be subject to strict scrutiny.

There is the issue of whether Anthropic’s conscience claims are “religious” under the law. Legal notions of religion are broad; they do not require a theistic belief, and they can cover practices like ethical vegetarianism or objection to vaccination, which are not tied to comprehensive metaphysical systems. I have argued elsewhere that AI-based beliefs, common with AI companies, seem to fit legal definitions of religion. Anthropic, which has ties to the Effective Altruist movement, is perhaps the most religious seeming of the large AI companies. It is a public benefit corporation which claims to “Act for the global good” while prioritizing AI safety. Anthropic created a constitution to guide the values of its AI model, which has at least some commonalities with a religious doctrine, devoting considerable time to its LLM Claude’s relationship to virtue and ethics. There seems little reason to doubt that Anthropic’s professed concern about killing civilians is a sincere ethical belief.

Dario Amodei explicitly cites conscience as the reason for not being willing to work on contracts with the Department of War involving mass domestic surveillance or fully autonomous weapons. During the Vietnam War, conscientious objector cases United States v. Seeger and Welsh v. United States found that conscience claims of refusal to render military service were “religious” for the purpose of making someone a “religious” conscientious objector to war. Seeger was not a traditional theist, while Welsh crossed the word religion off his draft form; both were understood to be religious by the Supreme Court. While those cases interpreted “religion” within the language of statute, they also have broader implications that claims of conscientious objection did not have to be rooted in established religious traditions.

Anthropic’s case in some key ways resembles Thomas v. Review Board, where a Jehovah’s Witness filed for unemployment after leaving a factory job where he was assigned to make tank turrets when he felt he could not in good conscience help produce weapons. Though this kind of work was not condemned by all Jehovah’s Witnesses, the Supreme Court found that his objection to involvement in producing war material was religious in nature. The act of refusing to take part in producing weapons because of ethical objections to taking human life, the demand to not be involved in killing, might be inherently religious in nature.

The biggest difference, other than Anthropic is a corporation, is the fact that Anthropic does not object to AI weapons in all circumstances. Anthropic has stated that it might not oppose autonomous weapons if it felt they were reliable enough not to endanger civilians and U.S. soldiers. While this might appear to undermine Anthropic’s ethical stand, these sorts of moral arguments about a kind of weapons technology have been common in ethical debates about warfare. The Jesuit theologian John Ford in 1944 for instance drew a useful distinction between precision bombing, which he believed could be morally undertaken, and obliteration bombing of the kind undertaken on cities in Japan and Europe, which he classified as an “immoral attack on the rights of the innocent.” If the technology does not allow moral use in its current form, Anthropic’s objection is still an ethical one.

Anthropic’s objection to only certain kinds of AI use in warfare is a kind of selective conscientious objection. When the U.S. had a draft, courts were not supportive of selective conscientious objection in Gillette v. United States when claimants were not opposed to all war. Yet for the purposes of RFRA, this does not matter so long as the objection to the government’s burdening of their beliefs is sincerely religious. Anthropic explains why it objects to using AI in autonomous weapons and to surveilling Americans, citing the technology’s great potential for harms. Even if Anthropic’s explanation is not perfect considering their past contracts with the military or their belief that autonomous AI weapons could one day be developed, it is well established since Thomas that religious liberty claims do not have to be internally consistent.

There are reasons why Anthropic might not opt to use RFRA to defend its ability to not develop AI weapons. RFRA would not salvage a frayed relationship with the Department of War and would risk future contracts. There would certainly be reputational costs for an AI company arguing that it was religious, which might hurt its public reputation and cause it to be seen as odd or even cult-like. Further, other legal avenues exist for Anthropic, such as compelled speech and expression, and they seem to be working effectively now. Those opposed to the government might worry about the expansion of corporate conscience rights, even if this case is sympathetic.

Yet as a matter of law, Anthropic has a religious liberty claim that could shield it from federal coercion. This claim is just as strong as any involving speech. An AI company refusing for reasons of conscience to make a weapon is no less obviously religious than a craft store like Hobby Lobby refusing to provide employees with contraceptive coverage.

Isaac Barnes May is a Resident Fellow at the Information Society Project at Yale Law School. He is the author of two books, including American Quaker Resistance to War, 1917–1973: Law, Politics, and Conscience.You can reach him by e-mail at isaac.may@yale.edu.

Skowronek on American Democracy: Gridlock, Presidentialism, and Democratic Faith

2026-03-30T09:30:00.006-04:00

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

Andrea Scoseria Katz

Having read several earlier versions of Stephen Skowronek’s The Adaptability Paradox, I was struck by the book’s preface, with this arresting new ending:

This book is going into production just as a new administration is about to take charge. The elections of 2024 have brought our constitutional institutions into a highly charged partisan alignment, and detailed plans for a thoroughgoing shake-up are already in hand. [T]he following pages offer a view from the precipice. Next steps are ripe with hazard. The outlook is frightening. But we did not arrive here suddenly. The situation at hand did not arise out of the blue. The Adaptability Paradox is about how we reached this point.

At the time those words were written, Donald Trump had already organized a failed electoral coup, twice been impeached, faced multiple criminal charges and numerous civil lawsuits—and been reelected to the nation’s highest office. Even this gave little sense of what lay ahead. Just one long and chaotic year into his second term, Trump has gone further than any other president in using his formal authority to cripple, politicize, and weaponize the power of the federal government. He has emptied out whole agencies, prosecuted political enemies, strongarmed universities and the legal profession into compliance with his agenda, set a federal police force against American citizens, started a unilateral war of choice, and bid to interfere with the upcoming midterm elections.

How, as Skowronek asks, did we reach this point? The Adaptability Paradox has much to say about Trump’s causes, and his consequences.

As constitutional theorists know, democracy requires a constitution, yet risks destroying it in the bargain. The Adaptability Paradox describes the selfsame contradiction: our Constitution’s inclusivity has become a threat to its survival. For most of American history, Skowronek argues, our founding document proved resilient because it adapted to diverse democratic demands without ever requiring, or producing, a fully realized democracy. Prior constitutional reorderings (the Jacksonian party state, the Progressive administrative state, the New Deal) worked because they were “bounded”: they maintained the social exclusion of unwanted parties (women, Black Americans, non-citizens, the unpropertied) (8). Such exclusions were not just moral failings, Skowronek writes, but a kind of “ballast” that “h[eld] the frame together” (35).

In a book fond of paradoxes, the Rights Revolution of the 1960s and ‘70s is one more, the moment that American democracy both became complete and started to fall apart. With all comers admitted to the deliberative arena, no issue was off the table, shared premises dwindled, and constitutional politics became a series of existential clashes in which every side believed it could not afford to lose. “With full inclusion,” Skowronek writes, “security is in short supply, there is no discounting who is next in charge, and those same separations and checks have been weaponized to vent irreconcilable differences” (204).

It seems to me that Trump, a democratically elected president who threatens to destroy democracy, is symptomatic of the same paradox. Scholars have convincingly depicted his election as a rejection, by the masses, of the very values of tolerance and inclusivity that underpinned the Rights Revolution’s perfected democracy. Others have shown that his simplified Manichean narratives and overweening paternalism speaks to a broader fatigue among voters with democracy (whether democracy as it exists right now, or as a system itself).

For voters sick of the complexity of democracy, Trump is a president par excellence. Their grievances are real. The solution, however, is not.

Consider this account of our government: the president mandates, by the stroke of the pen, some policy change that is sold to the American people as transformative (“the Green New Deal” “Make America Great Again”). Inevitably, it fails to meet the moment. The White House changes hands in an election, the prior policy is disavowed and dismantled, and the cycle begins again. Trump typifies the pattern, but Skowronek, a longtime student of the presidency, has been drawing out this link for years. His work has shown that, over the span of American history, social movements, channeled by the president (Jacksonian democracy, Lincolnian nationalism, the New Deal, Reaganism) have remade the office and the face of government alike. Those cycles of revolution grew progressively more attenuated over the years as the hedge of institutions surrounding the office thickened, leading to the dismaying possibility that even the president—the only institution today that seems capable of decisive action—has lost its capacity for revolution.

In two strands of my recent work—on judicial usurpation of the constitutional order, and on the democratic mobilization that once pushed back against constitutional fetishism—I’ve criticized the shallowness of American democracy’s present form. Skowronek’s paradox suggests that these twin phenomena may derive from a lack of belief in democracy itself. (Skowronek sees too much inclusion as the problem; one might also blame gaping income inequality, the broken party system, technological change, and the rise of the modern conservative legal movement, with its deregulatory ambitions, racial retrenchment, and its phalanx of judges aiming squarely at Congress’s prerogatives to reorder the state). Either way, absent democratic faith—in Congress, elections, or the basic legitimacy of outcomes—the nation has resorted to quick fixes: presidential overpromising, judicial activism, the false of promise of extra-constitutional adaptability itself. These stopgaps have driven us into a corner.

Courts and the president, I believe, are not pure usurpers. They are, at least in part, filling the void left by our own ambivalence toward self-rule. As I argued in my work on the Progressive Era, it was not always so. The great progressive reform movements turned, not to executive power or judicial creativity, but to Article V, managing to push across four system-altering amendments between 1913 and 1920 in a broader era of “constitutional tinkering.” Many reforms proposals targeted the countermajoritarian features of the constitutional order itself: the Electoral College, lifetime judicial tenure, indirect Senate elections.

The Progressives, in other words, did what Skowronek implies is now impossible: they tried to adapt the Constitution through democratic mobilization rather than through extra-constitutional adaptation. And they had real, if incomplete, success.

Why could they do it? Partly, of course, by virtue of the ballast Skowronek describes: theirs was a dramatically exclusionary democracy, and that exclusion constrained and stabilized their mobilizations in ways they could not fully see. But partly, I think, because they trusted the democratic process enough to stake their reform agenda on it. They believed that a mobilized, informed citizenry could change its own Constitution.

This is where Skowronek leaves us at the most vertiginous edge. He suggests the current moment is genuinely unprecedented: prior generations stabilized constitutional change through exclusion, but that stabilizer is gone and cannot decently be restored. The question, as I read him, is whether we can do something no generation of Americans has ever done: sustain democratic self-governance on genuinely inclusive terms.

The answer has to lie, if it lies anywhere, in elections. Elections, to be sure, require trust. But the Progressives found themselves, too, penned in by a divided society and captured institutions. Their saving grace was a “fierce discontent” that forced a fractious and fractured society into a coalition that lasted long enough to force along the Constitution’s rusty Article V machinery. Today, Trump is unpopular, and huge problems—climate change, AI, security and the global order—remain unsolved. A fierce discontent is coming.

Skowronek asks whether we can adapt. The more precise question may be whether, when crisis comes, we can recover our trust in democracy, the Constitution, and ourselves.

Andrea Scoseria Katz is Associate Professor of Law at WashU; she can be reached at andrea.katz@washu.edu.

Politics and Legal Arguments Can Coexist: a Reply to Drall and Moyn

2026-03-30T09:00:00.001-04:00

Paul Gowder

Constitutional practice, whether in the courtroom or in the academy, has lots of problems, but one of the main ones is dealing with its dual character as law and politics. Perhaps that’s a controversial claim—certainly it would be controversial to a pure legal realist or an attitudinalist across the hall in political science. I guess it might be controversial to a classical formalist too, but I’m not convinced any of those still exist.

Outside those fairly small groups, I take it that we mostly agree that constitutional law is political in virtue of the following two features (at least):

(1.a) The outputs are influenced by politics. That is, judges’ and justices’ decisions depend in part on their ideology; and

(1.b) The inputs are influenced by politics. That is, the legal arguments that advocates make are influenced by, among other things, social movement advocacy, doctrinal entrepreneurship (the most famous recent example, which Drall and Moyn discuss at length, being the surprise impermissibility of ordering people into commerce), and extended programs of strategic advocacy and theory-building motivated by political goals, whether carried out by Charles Hamilton Houston, Ruth Bader Ginsburg, or Leonard Leo.

I take it that we also mostly agree that constitutional law is legal in virtue of the following four features:

(2.a) The enterprise is conducted in the language of law and legal reasons. Lawyers and judges aren’t permitted to just say “because I said so” or “because I’m a Republican”; those constraints establish outer bounds on the permissible positions one might take. For obvious examples, reestablishing chattel slavery, banning the Republican Party, or electing a 19-year-old president are off the table, regardless of one’s politics—but so are many less extreme things. We can call this the “minimal baseline” of constitutional law as law.

(2.b) Regardless of whether or not one thinks that constitutional arguments have truth value (one of my skeptical Northwestern colleagues regularly insists in the faculty lounge that they don’t), constitutional arguments can be better or worse than one another for legal reasons, either with respect to some higher-level interpretive theory (one can do originalism better or worse) or with respect to the minimal baseline (any argument that entails that Dred Scott is still good law is, all else being equal, worse than an argument that does not do so).

(2.c) As a consequence of the previous two features, it is sometimes impossible for a participant in the enterprise of constitutional law, who takes that enterprise seriously and in good faith, to defend their preferred political outcomes from within that enterprise. I happen to think that the malapportionment of the Senate is terrible, outrageously unjust, and undemocratic, but there is no good faith pathway for me to argue that it is unconstitutional.

(2.d) The previous three features are valuable for all of the standard reasons that people defend the practice of constitutional law (for example that it limits the stakes of ordinary politics, or that it permits certain kinds of democratic coordination), and legal professionals of all kinds are rightly subject to criticism, from within the norms of constitutional law, for undermining them, including by intentionally trying to make the worse arguments appear to be the better.

If those things are true, then 2.c-d constitute a normative limitation on 1.b. Consider a concrete example. I might convince some rich people to fund an organization dedicated to spending a few decades seeding the idea that the First Amendment permits the government to ban a political party if that party has veered in a sufficiently authoritarian direction. But doing so would be a violation of the (justified) norms of the social practice of constitutional law.

That isn’t just a crazy hypothetical. Recall that other liberal democracies, most notably Germany, have banned political parties associated with world-historical evils or the collapse of their own political liberty. It might very well be the case that banning the Republican Party or at least a kind of forced de-MAGAification would be the all-things-considered best way to restore our democratic order, consistent with the insights of the position known to other fields as militant democracy. Nonetheless, I would be rightly subject to harsh professional criticism for arguing that the First Amendment permits such a thing.

Claiming that the First Amendment permits full-fledged militant democracy would be improper—a betrayal of the enterprise of constitutional law and the role morality of a legal scholar—even if such entrepreneurship ultimately succeeded and the bad arguments convinced some court to agree. Because any arguments for banning a political party being constitutionally permissible would be extraordinarily bad, articulating them wouldn’t even be playing by the rules of constitutional law at all. (To be clear, I don’t claim that this is true of all bad constitutional law arguments. Rather, the claim is that there is a degree of badness beyond the pale of permissibility—and for the sake of argument it seems safe to assume that any conceivable argument for the permissibility of banning a political party under our current constitution would reach that degree of badness.) Instead, it would be dressing up a policy or even a political argument as a legal argument, an act of bad faith and dishonesty.

That doesn’t mean that I can’t argue for banning the Republican Party. I might argue that we need to amend the First Amendment, or disobey it, or even that we’re in a Civil-War-esque constitutional rupture where the ordinary rules go out of the window. But I may not legitimately argue for banning the Republican Party from within normal constitutional interpretive methods.

What then is the obligation of the rest of us when someone violates that normative limitation by engaging in constitutional entrepreneurship so beyond the pale that it ceases to be constitutional argument at all? This quite naturally brings us to the problem of birthright citizenship and to the second post by Pranjal Drall and Samuel Moyn in these very “pages” on that subject.

Drall and Moyn seem to think that those of us who have attempted to argue against what they characterize as the “revisionist” movement on the right have erred. (In the first post they accuse us of LARPing. Ok?) But it’s far from clear what the error is. They divide us into two groups.

The first group consists of those who have in some sense taken the arguments of the likes of John Eastman and Ilan Wurman seriously and chose to address them in what Drall and Moyn call “ordinary scholarly terms.” Folks like Keith Whittington have written careful arguments from within the idiom of originalism, qua the interpretive approach claimed by most of the opponents of birthright citizenship and a majority of the Supreme Court. Non-originalist historians like Martha Jones have aptly pointed out that the task of interpreting the Fourteenth Amendment ought to have something to do with what the Black people who fought for citizenship were trying to do. But for Drall and Moyn this comes off as some kind of delusion. Careful originalists like Whittington are accused of trying “to live a current political struggle as a star-crossed quest for an apolitical and determinate answer about how the past bears on the present,” while the historians “are tempted to mistake apolitical professionalism for a guarantee of determinate results.” (That one’s particularly odd. I’ve never once met a historian who has been willing to concede that looking to the past yields “a guarantee of determinate” anything.)

In the other group are “Professors Evan Bernick, Anthony Michael Kreis, Jed Shugerman, and other allied liberal and progressive critics” (by that last clause Drall and Moyn appear to mean, uh, me) who recognize that there’s a political game afoot and have been willing to say so. The members of this second group, according to Drall and Moyn, have done something “far less defensible”: we’ve recognized, openly and explicitly, that there’s politics going on, and have nonetheless allowed ourselves to be “drawn onto the terrain of those they initially dismissed as incompetent or ridiculous–as if there was no other choice for responding to the legal politics of their enemies.” As far as can be discerned, what being “drawn onto their terrain” amounts to is addressing their legal arguments—showing, for example, that they get the history wrong or that they hold themselves to the standards of originalist methodology but fail to meet those standards. (By post three it becomes impossible to tell whether the problem is that we’re making legal arguments at all or that we’re entertaining the originalist sort in particular: Drall and Moyn decry “responding to the argument on legalist and originalist terms,” as if doing one is just as bad as doing the other.)

This is really puzzling. If anything resembling the model of constitutional law’s dual political and legal character that I sketched above is true, then the reason that the anti-citizenship position is so incompetent and ridiculous is because the arguments are so bad. Claiming that the position is incompetent and ridiculous is a kind of promissory note redeemed by carefully pointing out the way that the arguments fail. That’s our literal job.

Moreover, the evidence for the arguments being nakedly political again goes through their badness. There’s other evidence too, of course, like the fact that that all these old rejected arguments suddenly got rediscovered right after Donald Trump issued an executive order. But if the arguments were reasonable interpretations of the law then a charitable interpreter might nonetheless conclude that they were sincere efforts at filling out the content of our shared legal commitments. Because they’re not reasonable interpretations of the law, it becomes much more plausible to think that they’re just naked power grabs by one political team. (For the same reasons they at least raise the suspicion of outright corruption, that is, that at least some of the people making arguments against citizenship are doing not out of honest belief but out of a desire to demonstrate loyalty to the guy who currently has the power to hand out fantastic life-tenured patronage jobs.)

In other words, the whole enterprise of recognizing that constitutional law is operating in this case on the political rather than the legal end of the spectrum depends on critical engagement with the claim by its politicizers to be doing something lawlike.

Moreover, why are Drall and Moyn so confident that the effort by the birthright politicizers to shift the Overton window to include their lousy arguments was successful? Isn’t it a good idea to contest those efforts, by, yet again, carefully pointing out how those arguments fail even on their own terms? Put differently, why on earth would recognizing the attack on birthright citizenship as nakedly political oblige those who wish to defend it to cede the “terrain” of legal argumentation to its betrayers?

Ultimately Drall and Moyn are playing coy with us, hinting that there is, in their words, some “other choice for responding to the legal politics of [our] enemies,” but never bothering to say what that other choice is. I can’t help but suspect that the reason is because the other choices are all far from satisfactory.

Even in Part 3, where we had been promised the strategy, what Drall and Moyn tell us to do is to “argu[e] for birthright citizenship politically and in principle.” But that’s not a strategy, it’s just a platitude.

First of all, there isn’t any particular reason to think that the people on the other side of our current politics (including the majority of the Supreme Court), who by Drall and Moyn’s assumption are uninterested in whether or not the legal arguments are any good, are going to be any more interested in hearing arguments from principle.

Second, we have been offering arguments from principle with our legal arguments. For example, in the paper that Anthony, Evan and I wrote, we not only argued that the “revisionists” have done their history and their originalism badly, we also argued that poking holes in the longstanding and traditional rule of birthright citizenship would undermine the stability of citizenship itself and all kinds of other legal rights, creating huge amounts of arbitrary power to be turned on the vulnerable. We also directly argued against the weird kind of moralizing that some of the advocates of ruining birthright citizenship have offered: both Epstein and Vermeule have claimed that birthright citizenship somehow confers a morally objectionable reward on a wrongdoer, but we explained that this position both rests on a confused and bigoted understanding of undocumented immigrants (the empirically false premise that undocumented immigrants are all people who snuck across the border to procure some illicit benefit) and amounts to punishing children for the sins of their parents. That’s an argument on the domain of principle.

Similarly, the Jones/Masur amicus brief that Drall and Moyn seem so skeptical of makes the principle underneath the Black struggle for citizenship clear. They remind us that

Douglass and other free Black Americans knew precisely why their long-held vision for a sweeping, democratic birthright principle needed to be written into the Constitution: without it, the whims of political authorities would govern citizenship, and large groups of American-born people might be deemed non-citizens and therefore subject to removal or banishment from the country without process or cause, to arbitrary arrests, to exclusion from courts, and other abuses.

Some of those who chose to engage with the legal process went further. The U.S. Conference of Catholic Bishops submitted an amicus brief that outright argued that the Catholic principle of human dignity required the preservation of birthright citizenship. All of those examples are arguments about principle, not merely the technical machinery of originalism or anything else that Drall and Moyn are so against.

Third, why does it have to be one or the other? Can’t we hold two or even three thoughts in our heads at the same time? The arguments for undermining birthright citizenship are garbage, legally speaking (even from within originalist methodology) and they would create a moral and practical catastrophe, and they’re dangerous politically speaking such that we need to be making political alliances to stop them because once you start down the pathway of declaring that some people lose their citizenship you very quickly end up conferring on racists and fascists the power to kick out anyone who they don’t like. Those are all true.

Liberal and progressive legal scholars don’t need to be a monolith. Drall and Moyn suggest that engaging directly with the arguments of the other side “requires collusion on interpretive method, which moves our jurisprudence to the right.” But there is no “our jurisprudence.” We have multiple jurisprudences. Forgive me for once again using the paper that Evan, Anthony and I wrote as an example. The three of us, progressives all, have almost entirely disjoint approaches to the field of constitutional law. Evan’s a serious originalist who has co-authored with Randy Barnett. Anthony’s expertise and focus is more aligned with traditional historians, to the point that he’s a fellow of the Royal Historical Society. And I’m a political theorist who thinks the right way to do constitutional law starts with the problem of democratic legitimacy and that this requires an explicitly radical, tactical and reconstructive approach to the past. (I did not sign participate in any amicus brief because I’m pretty sure my views would make the current Supreme Court majority recoil in horror.) The paper we wrote quite self-consciously aimed to demonstrate that the case against ruining birthright citizenship can be made from all three standpoints, and while simultaneously “call[ing] out the revisionism as a political project rather than a scholarly one, and … attack[ing] the good faith of the elite legal actors on the other side pretending otherwise.”

Right now we’re in a moral and political catastrophe, and the other side seems to think that their bad legal arguments are going to help them perpetrate that catastrophe. They are deploying frivolous legal arguments in order to hurt the most vulnerable among us, in witting or unwitting league with a racist political movement that believes that immigration is a conspiracy to turn American culture non-white and non-Christian for unspecified nefarious purposes. (One thing that Drall and Moyn notably lack is a theory of why the other side feels the need to make all those arguments if they’re just epiphenomenal.) Assuming that our —under the circumstances I’ll go along with the troublingly Schmittian language that Drall and Moyn use and say—“enemies” are not fools, and experience those arguments as serving some function, even if merely permitting the Supreme Court (if it turns out to be inclined to decide in their favor for political reasons) something plausible-sounding to say to explain its abuse of power. But then it requires something more than postmodern ironic distance to justify letting them offer those arguments uncontested.

In response to this, Drall and Moyn seem to think that somehow contesting the bad arguments makes the matters worse. Post 3 contains the clearest statement of this position: “We seem to forget that the revisionists do not need to win the argument cleanly. They just need the argument to be plausible and liberals, by responding to the argument on legalist and originalist terms, make it easy for the Supreme Court to treat it as an open question.”

But how precisely is that supposed to work? The (frivolous) legal arguments have already been uttered. We can’t stuff them back into Pandora’s box by ignoring them. Right now the choices available to us are to let the legal arguments go unanswered or to answer them.

If we simply let them go unanswered, the right-wing Supreme Court majority, should it be so malicious as to wish to rule against the newborns, is free not only to “to treat it as an open question” but even to treat it as a question that is settled the wrong way—to say “oh, well everyone kind of assumed after Wong Kim Ark that birthright citizenship applied to the children of undocumented immigrants, but only because nobody did the research to check. Now our far-right originalist buddies have actually looked in the archives, and lo and behold, it doesn’t. Case closed!”

By contrast, what is the consequence of answering the arguments? Drall and Moyn sometimes write as if doing so lends them some kind of legitimacy, sort of like the legend about Lyndon Johnson once spreading a nasty sexual rumor about one of his opponents and a pig in order to “make the sonofabitch deny it.” But that’s not plausible. Neither Donald Trump nor Samuel Alito are likely to conclude that the arguments of their allies become more plausible because we feel the need to respond to them. As our host pointed out a few years ago in The Cycles of Constitutional Time, one of the features of our current constitutional crisis/rot is that the elite social networks of the bench, bar, and academy have split, so that Sam Alito is much more likely to care whether Randy Barnett says his arguments are plausible than whether I or Sam Moyn do.

Permit me to suggest that there are two more hopeful possibilities for what might come of our deigning to respond directly to the arguments of the other side:

(1) The most hopeful possibility is that our arguments might have some effectiveness on the margins. Even modeling them as pure political actors, Supreme Court justices could have preferences over multiple political dimensions—for example, their preferred policy outcomes and their perceived legitimacy. John Roberts and Amy Coney Barrett might prefer to create a bunch of stateless newborns, but their preference for doing so might be insufficiently intense to overcome their reluctance to subject themselves to public embarrassment by signing on to legal arguments that are demonstrably (because we’ve bothered to demonstrate it) garbage even from within their own preferred interpretive theory.

(2) The less hopeful possibility is that at least a malicious Supreme Court majority would be forced to say visibly dumb or wicked things in order to confront our arguments (if only because they’ll be in Justice Sotomayor’s or Justice Jackson’s dissent). Doing so would at least be better than the alternative, for those visibly dumb or wicked things can then provide the basis for future political and legal action down the line, when the political environment is more favorable. We can build a record for the case to be reversed.

To be clear, I absolutely agree with Drall and Moyn that we need to be doing politics in addition to law. As we all know, the domain of possibility for the Supreme Court is constrained by what other officials and ultimately the general public are willing to accept. But that doesn’t mean that it’s a good idea to ignore the legal arguments.

One big problem is that pure politics about basic questions of membership and civic identity without the guardrails of law tends to very quickly devolve into gunplay. Indeed, as the commentators from diverse political teams who have compared the anti-citizenship position to Dred Scott might observe, we had a whole Civil War the last time the Supreme Court and raw politics conspired to create a class of internal stateless without the rights associated with citizenship.

It may be that things are so bad that we’re on the gunplay path anyway. But that doesn’t mean we have to give up on all efforts to avoid it. Forgive me for thinking that part of the point of the Fourteenth Amendment and our generally positive attitude toward it is to not give the Confederates a do-over. Relatedly, I also don’t quite understand how you consolidate the gains of the gun-toting kinds of politics without being willing to at least sometimes do constitutional-law-as-law. I had been under the impression that another big part of the point of the Fourteenth Amendment—albeit one that did not manage to take hold even partially for many decades after its enactment—was to permit the Freedpeople and their Unionist allies to set the guns down.

Moreover, even agreeing, as I do, with Drall and Moyn that political contestation and arguments from principle are necessary components of the fight against the mad movement to create a bunch of stateless newborns, there isn’t any particular reason to think that their audience—a bunch of law professors and historians—has any particular comparative advantage in doing principle or politics. What are we supposed to be doing right now?

One approach, characteristic of a certain kind of legal realism/critical legal studies pose, is to gaze down on the whole thing with a kind of Olympian detachment, like an old-school anthropologist observing the quaint customs of the tribe that call themselves “constitutional lawyers.” (Or, god forbid, “liberals.”) Look at how they use all those magic words and pretend that they have meaning. We, the enlightened ones, know that it’s all just superstitious ritual meant to propitiate the gods because the tribesfolk are too primitive to understand that the real cause of the crop failure and the fascism is the means of production or something. Maybe this also counsels engaging in some kind of political critique of the enterprise of conditional law altogether. In the first post Drall and Moyn go so far as to dismiss the enterprise of offering legal arguments as “legalist,” as if that’s a bad thing or some kind of tragic concession to the other side.

At its worst, the Olympian approach to constitutional law just amounts to the neglect not only of the internal point of view on the business we’re all in but also of the real human beings who are hurt by it. We can tut-tut at the libs and their false consciousness and praise ourselves for not sullying our lips with anything so clueless as constitutional legal argumentation while ICE drags babies straight from the maternity ward and puts them on a plane to whichever dictatorship has a sweatshop with room for them.

At its best, the Olympian approach to constitutional law might be paired with some putatively effective mode of extra-legal political action. Perhaps we should all just quit our jobs and become organizers. Or we could take a page from the Silicon Valley effective altruists (at least the ones who aren’t in prison) and keep our jobs, but only do constitutional law ironically while donating our salaries to some group of children of undocumented immigrants. And surely such political action is a good thing. But if that’s all that we’re supposed to be doing right now, then it’s hard to see how we’re any better positioned to do it than anyone else, and we probably ought to quit our jobs and go do something productive with our time. (On the effective altruist version of the strategy, we ought to go get corporate law jobs to have more money to donate.)

Perhaps I’m wrong. Perhaps Drall and Moyn do think that there’s some other way that we can, by carrying out our functions as lawyers and constitutional scholars, serve the innocent people who are at risk of having their rights and basic human interests ripped away by this regime with the active collaboration of our morally depraved colleagues. But until they explain what that other option is, I will continue to believe that critically engaging with bad arguments for evil political programs that have been laundered through the forms of constitutional law is just doing our damn jobs. And as long as there is some possibility, however remote, that someone with power, wearing a black robe or otherwise, might be sufficiently embarrassed by the clear weakness of the arguments for brutalizing the most vulnerable people in our midst relative to the arguments against brutalizing them to hesitate before deporting a single newborn, it seems to me that our jobs are worth doing.

Paul Gowder is the Frederic P. Vose Professor of Law at Northwestern University and most relevantly for present purposes one of the co-authors, with Evan D. Bernick and Anthony M. Kreis of Birthright Citizenship and the Dunning School of Unoriginal Meanings. You can reach him by e-mail at paul.gowder@law.northwestern.edu.

Constitutional Democracy in Crisis? II TOC

2026-03-29T16:42:00.004-04:00

The final version of the second edition is now at Oxford University Press. We have amazing chapters and authors. The most comprehensive study of democratic decline and resilience throughout the world. Much thanks to Mark Tushnet, Sandy Levinson, and Antonia Baraggia for their editorial help. All publicity is good. TOC below.

CONSTITUTIONAL DEMOCRACY IN CRISIS? II

TABLE OF CONTENTS

1. Antonia Baraggia, “Introduction,”

PART ONE: BACKGROUND

2. Keith E. Whittington, “Defining Constitutional Crises”

3. Zachary Elkins, “Is the Sky Falling? Constitutional Crises in History Perspective”

4. Tom Ginsburg and Aziz Z. Huq, “Defining and Tracking the Trajectory of Liberal Constitutional Democracy”

5. Laura Gamboa, “Democratic Resilience in the 21^st Century”

6. Kim Lane Scheppele, “The Frankenstate, Revisited”

7. Mark Tushnet, “Proto-Authoritarianism and Abusive Constitutionalism”

PART TWO: COUNTRIES

8. Vicki C. Jackson, “Knowledge Institutions and Constitutional Democracy’s decline: a U.S. Case Study”

9. Mark A. Graber, Mark Tushnet, Sandy Levinson, and Antonia Baraggia, “Letters from the Editors: Democratic Decline in the United States”

10. Emily Zackin, “Constitutional Democracy and the U.S. States”

11. Mariana Velasco-Rivera, “Understanding Mexico’s Democratic Decline”

12. David Landau and Raul Sanchez-Urribarri, “Courts and Constitutions in an Evolving Autocracy: Venezuela”

13. Marcela Prieto Rudolphy and Sergio Verdugo, “Not a Zombie Constitution: Limited Resilience and Chile’s Unfinished Constitutional Journey”

14. Emilio Peluso Neder Meyer, “Brazil: Between Erosion and Collapse”

15. Erin F. Delaney and Julie E. Smith, “The UK Constitution: Parliament on the Precipice”

16. Nicoletta Perlo, “When Democracy Bleeds: Constitutional Rot in France”

17. Monica Claes and Joost Sillen, “Guardrails under Strain: the case of the Netherlands”

18. Michaela Hailbronner and Felix Oldenberg, “Right-Wing Extremist and Militant Democracy in Germany”

19. Victor Ferreres Comella, “Constitutional Crisis in Spain: The Rise and Fall of Catalan Secessionism”

20. Giuseppe Martinico, “Is Italy a Case of Constitutional Democracy in Crisis?”

21. Wojciech Sadurski and Anna Wójcik, “Constitutional Crises in Poland: An Uneasy Pathway to Democratic Restoration”

22. Jens Woelk, “The Western Balkans: ‘Stabilitocracy’ or Democratic Transformation?”

23. Yaniv Roznai and Noam Gidron, “Israel – Populism, Polarization and the Crisis of Democracy”

24. Francesco Biagi, “Tunisia: The Illiberal Populist Project of an Unconstitutional Constitutional Scholar”

25. Rabiat Akande, “Constitutional Democracy in Crisis? A View From Nigeria”

26. James Thuo Gathii, “Kenya’s Debt Induced Constitutional Crisis: 2023-25”

27. Penelope Andrews, “Constitutional Crisis or Mere Growing Pains: Reflections on 30 Years of South African Democratic Constitutionalism”

28. Madhav Khosla and Milan Vaishnav, “India after Democracy”

29. Geser Ganbaatar, “Democratic Backsliding in Mongolia”

30. Keigo Komamura, “The Death or Reincarnation of the Constitution of Japan: A Nation of ‘Constitutional Change Without Amendment”

31. Chien-Chih Lin, “Constitutional Crisis in Taiwan: Domestic Factors, External Factors”

32. Joel Colón-Ríos and Sir Geoffrey Palmer, “New Zealand: An Exception to Democratic Decline?”

33. Rosalind Dixon and Anika Gauja, “Australia’s Non-Populist Democracy? The Importance of Electoral Design & Institutional Adaptation”

PART III: CHALLENGES

34. Thomas M. Keck, “Free Speech, Constitutional Democracy, and Democratic Backsliding”

35. Yasmin Dawood, “Electoral Resilience and the Democratic Governance Model”

36. Jeff King and Octávio Luiz Motta Ferraz, “Health Emergencies and Democratic Erosion: did the Covid-19 pandemic help autocratization?”

37. Bojan Bugaric, “When Populism Meets Neoliberalism: Constitutional Order in Crisis”

38. Susan-Rose Ackerman, “Kleptocracy and Corruption’s Impact of Democracy”

39. Kamala Sankaran, “Identity and Constitutional Design”

40. Ayelet Shachar, “The Inversion Paradox: Majorities Taking on the Minority Label”

41. Sanford Levinson, “Reflections on Secession—and World Government”

42. Ran Hirschl, “A Constitutional Crisis of Scale”

PART IV: CONCLUDING OBSERVATIONS

43. Ming-Sung Kuo and Hui-Wen Chen, “Finding the Place in Constitutional Democracy”

44. Mark A. Graber, “Navigating the Pluralist Autocracy Challenge to Contemporary Constitutional Democracy”

The Avoidant Constitution?

2026-03-28T09:30:00.002-04:00

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

Noah A. Rosenblum

The Adaptability Paradox raises a profound and challenging question about the way the Constitution works. Steve uses that question to retell the history of American government as the shift between a series of different settlements, which has only recently broken down. I wonder, though, whether the book suggests a different historical account, one that emphasizes not consensus, but dissensus. In this way, his book points us towards a new approach to Constitutional theory—and new historical and political projects that would go with it.

At the heart of Steve’s new book is a provocative insight about the relationship between the Constitution and American political culture: the Constitution has functioned best not when it resolved our most fundamental political disagreements, but when it allowed us to safely ignore them. “The Constitution’s historic capacities to easy pressures on the system, to induce buy-in to a new deal, and to regenerate agreeable ways of governing,” he concludes, “rested not on the principles derived from its interior design but on the social exclusions the framework maintained. Exclusions provided the ballast that held the system together.” (204). One might say that it’s what the Constitution put beyond the government that made governance at all possible.

This is a counter-intuitive claim. The Constitution is often at the center of our political disagreements. The more significant the conflict, the more we appeal to it. The Constitution’s very endurance and importance encourage us to rely on it. We turn to it to resolve our hardest problems and eek out durable solutions. And yet, Steve’s book contends, the Constitution’s authority rests on its inability to mediate our most vexing oppositions. If the Constitution is failing us now—and Steve worries it is—it is because we have started asking too much of it. We need our Constitution to help us avoid the political problems we cannot address, not drive us to them.

I think this is another way of stating the “paradox” that gives Steve’s book its title. Time and again, American democracy has reinvented itself, pouring new processes into old forms, as the government has adapted to new social and political conditions. The Adaptability Paradox elegantly recapitulates this step-wise transformation of American democracy. The original Constitution was framed for an 18^th Century polity shot-through with social hierarchies and status norms. “Democracy,” for many of the Framers, was about the rule of local notables, not egalitarianism. And yet, within a few decades, it had become a regime of universal white manhood suffrage, something different from what had been envisioned at Philadelphia. A few decades more and it was a bona fide mass party state, a government the Framers would have abhorred.

That the founding charter has accommodated such fundamental shifts in the government’s organization and bases of legitimacy is genuinely remarkable. In the past two hundred and fifty years, the French have gone through four republics, three kings, two emperors, and a smattering of other constitutional forms; the U.S. Constitution has had, by contrast, but a few amendments, none of which altered the fundamental structure of government. While we have had several different American Republics, they have all fitted themselves to the Constitution, and the Constitution has, somehow, made room for them all.

But this adaptability has come at a price. To keep the Constitution as a going concern, new forms of governance need to generate renewed buy-in to the Constitution itself, however transformed. There is a kind of positive political science at work here: whatever the Constitution comes to mean at the hands of a new political regime, the major political actors in American society must conclude that they have more to gain than to lose from playing by its rules. No one with enough pull to destabilize the government as a whole can feel like too much of a loser or worry they will never have a chance to win. When it comes to the most deeply felt disagreements, the Constitution simply cannot come down on one side or the other, cannot make a powerful interest feel as if its governance goals are unachievable. To enable democratic adaptation, the Constitution must constitutionalize avoidance. The more divisive the policy, the more studiously must the Constitution foreclose consideration. Such are the wages of “political security” (122).

Steve terms this “bounded resilience.” The Constitution is resilient—and facilitated the resilience of American democracy—by being bounded. For most of U.S. history, rather than seek to resolve our fundamental disagreements, the Constitution has composed them. It canalized unresolvable oppositions, preventing them from making governance on other issues impossible. Adaptions succeeded where they helped channel irresolvable conflict away. “The containment of conflict facilitated and sustained the adaptation. The willingness to engage rested on the terms of engagement, and the terms of engagement rested on the willingness to exclude.” (61).

If the government is breaking down now, it is because the Constitution has become “unbounded.” We are no longer willing to put fundamental questions beyond the government’s reach. With no restrictions to prevent intractable disagreements from becoming the stuff of government, or mediating institutions to soften them, the Constitution has become directly subject to irresolvable conflicts. “American government, once a tightly bound social compromise, was left with no escape from the nation’s deepest divisions.” (141).

Steve’s recapitulation of American political development is virtuosic. The Adaptability Paradox extends the work he did with Karen Orren in the great (and not sufficiently appreciated) The Policy State, which tracked the expansion of the domain of the political across American history. There, Steve and Karen showed how more and more questions became grist for the mill of government; here, he shows the cost of this expansion. In this way, the book offers a contrapuntal note to Steve’s earlier, celebrated Building a New American State and The Politics Presidents Make. Those books emphasized the creativity of American state-building in the face of path-dependent institutional accretions. The Adaptability Paradox, like his co-authored Phantoms of a Beleaguered Republic, stresses the constraining costs of that administrative inheritance. Innovation may be born in political time, but intercurrence takes place in secular time. Fittingly, The Adaptability Paradox summarizes two centuries of institutional development to explain how the Constitution’s bounded resilience worked and why it has, only now, begun to break down.

Steve fashions a narrative of succeeding settlements, but I wonder if his own insight into the conditions of constitutional adaptability militates against this stadial account. I need to start by conceding that I, too, narrate the history of American democracy this way: as a series of settlements, Kuhnian political paradigms structuring debate before the anomalies they failed to incorporate overwhelm them and force a radical shift. This historical story finds its analog in the succeeding party systems that have organized American politics since the election of John Adams: Federalists and Republicans, Democrats and Whigs, and so on. My critique of Steve is an auto-critique too.

The Adaptability Paradox trades on language of this kind. It periodizes in a conventional way, distinguishing the 18^th century “original Constitution” from the Jacksonian/Whig “antebellum party state,” the “post-Reconstruction party state,” “the administrative state” of the Progressive Era and New Deal, and the “unbound Constitution” produced by the "rights revolution” and the backlash it engendered (108-09). The book impressively reconstructs how these different regimes mediated fundamental conflicts or kept them off the national agenda to achieve enough stability for functional governance.

But this very account points towards an alternative narrative, one that emphasizes not consensus, but dissensus. After all, the fundamental conflicts these succeeding settlements composed were never resolved. At best they were mediated or suppressed, channeled away from national politics. Conflict never stopped; it continued in other fora.

One issue, of course, occupied pride of place in the American constitution of avoidance: racial equality. As The Adaptability Paradox makes clear, it is the question of equal treatment regardless of race that, more than any other issue, has posed the greatest threat to destabilizing national governance arrangements all across American history, from the dawn of the Republic to today. On its account, while different national settlements sought to exclude several different issues, their success as a settlement turned precisely on their capacity to keep race from sundering the nation. When racial equality became the lynchpin of the settlement rather than an excluded term, during the Second Reconstruction, the whole process of constitutional adaptability broke down: The Adaptability Paradox puts the transition from functional “bounded resilience” to the dysfunctional “unbound Constitution” at the reaction to the Civil Rights movement.

Centering race brings out the problem with talking of these different political settlements as “settlements.” They settled nothing. The succeeding political orders out of which Steve (and I) build narratives never actually achieved a consensus on the question of racial equality. The appearance of consensus masked continuous, ongoing conflict. This is true even (especially?) at the extremes. At the peak of Reconstruction, so-called white “redeemers” schemed to disfranchise Freedmen and reimpose racial hierarchies; at the height of Jim Crow racial egalitarians organized to beat back resurgent white supremacy. There were political fights over Confederate voting in the aftermath of the Civil War and political fights over lynching in the era of Birth of Nation. What looks like consensus from afar was always really dissensus.

We can make the same point in a less historical mode by going back to the positive political science foundations of “bounded resilience.” A functional settlement, Steve notes, needs to convince would-be opponents to buy-in. The avoidant Constitution purchases that buy-in by credibly keeping divisive issues off the national agenda. But political security is not a buy-it-for-life proposition. It needs to be continuously renewed. Whether a given faction has more to gain than to lose from opting into the Constitution is not a discrete calculation but a continuous function. When it turns negative, the system comes under strain. Opting out is always an option.

Foregrounding the perpetual need to maintain buy-in shifts the emphasis in Steve’s narrative, reverses the relationship between the settlements and their breakdown. In a country as large and diverse as ours, perhaps the system’s natural state would be dissensus. One would expect that governance is impossible, that intractable divisions would always dominate our politics. If the baseline condition of the American polity should be perpetual conflict over fundamental differences, the puzzle to ask is under what extraordinary conditions has governance managed to be something different. The chain of political settlements that give The Adaptability Paradox its historical arc would then be best thought of not as successive regimes but rather exceptional moments when, for different reasons at different times, governance became possible, at least on some narrow set of issues.

Is that the most we can hope for from our government—that, under unusual circumstances, for a brief period of time, it can ignore the important questions that divide us to tackle matters that matter less? What a chastened vision of government. It irks me—as it does Steve: he ends his book with a rousing call to “creat[e] the conditions under which a comprehensive reassessment would become safer and from which a more constructive vehicle for reordering might emerge.” (235). We need a Constitution suitable for “full inclusion.” But Steve is right that this world is not our world. We should expect more. But it will fall us to make a world that makes such expectations plausible, nevermind realized.

In the meantime, as a professor of constitutional law, I find Steve’s counsel both sobering and liberating. It would indeed be strange if the secret to resolving our most fundamental disagreements were to be found in the right construction of such an old and foreign document. Hard questions are hard, and no magic of law can make them easy. To expect our Constitution to hold us together when we are genuinely divided is to put more on the text than it will bear. Steve’s book is, at a minimum, a license to look for less in constitutional law, and more in other political formations.

But I think his is more than a counsel of despair. I find, at the end of his essay, the intimations of something new and bright, at least for scholarship. Analytically, Steve points us towards what might be a more fruitful approach to Constitutional analysis: not trying to figure out what side does the Constitution take in such or such a fight, or what does it mean for such or such a legal question, but rather: how does it channel disagreements towards or away from political processes, which disagreements does it tend to sharpen and which does it tend to diffuse? That the Constitution has done this differently at different moments suggests a new constitutional history of the United States, one that shows not just how one settlement succeeded another but rather tracks the way intractable conflicts remade the Constitution until they were remade in turn. That history might inform the new project Steve, echoing Dewey, calls for at the end of his book. Understanding how the Constitution works and how it has failed us must be the first step towards imagining how to reinvent it anew.

Noah A. Rosenblum is Associate Professor of Law at NYU; he can be reached at noah.rosenblum@nyu.edu.

The New American Adaptability Paradigm: Empire or Federation?

2026-03-27T09:30:00.001-04:00

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

Rogers M. Smith

Stephen Skowronek’s The Adaptability Paradox: Political Inclusion and Constitutional Resilience is grimly persuasive. The U.S. Constitution proclaimed that “We the People” would govern. But it won adoption only by also tacitly promising that the interests of the most powerful among the people, especially the propertied, land-hungry, often slaveholding white Christian men who led the American Revolution and designed its new political system, would not be disrupted, would more likely be protected and advanced. The original promise of popular self-governance has fueled pressures for changes in that system all through its history, and major changes have come--some through constitutional amendments, most notably those of Reconstruction, banning enslavement and racial disfranchisement, some through fundamental additions to the original institutional arrangements, most notably the modern administrative state, devoted to economic regulation, some redistribution, and civil rights. But those democratizing adaptations gained the limited success that they have had because they were accompanied by new protections for powerful interests. Jim Crow laws and practices sheltered the white landholders of the South up through the New Deal. Business corporations have benefited from their secure representation among the experts serving as administrative regulators up through the present day.

Now, with Americans across the spectrum angry at political, economic, and administrative elites, demands for democratization are testing the adaptability and resilience of the American constitutional system perhaps more than ever before—because now the demands are on behalf of diverse groups of Americans wide enough to encompass virtually the entire nation, making the threats to powerful interests, and the institutions that protect them, greater than ever. It is not clear that the kind of auxiliary institutional adjustments or even amendments that in the past sufficed for adaptations, bracketed by much continuity, can do the job this time. So, Skowronek concludes, “a fundamental reassessment of our basic governing arrangements might finally be in order.”

America’s troubled past and its alarming present highlight two different paradigms that might guide such a fundamental reassessment. A limitation of Skowronek’s analysis is that it overwhelmingly focuses on and illuminates developments within the American nation. If we embrace the transnational turn in much modern scholarship, one ugly reality is immediately apparent. The United States has repeatedly, indeed continuously, placated what Skowronek calls the “peculiar interests” of powerful groups within it through imperial governance of communities outside its geographic or its membership boundaries, along with the many internal protections for those interests that he details. The Constitution both authorized the new national government to regulate commerce with the Indigenous peoples it referred to as the “Indian Tribes” and gave it power to raise armies that all knew would aid settler western expansion and land acquisition, at those peoples’ expense. The Monroe Doctrine served to shield a long history of economic investment, and too often exploitation, by U.S. businesses in the lands to the nation’s south in the Western Hemisphere. The Spanish American War facilitated the acquisition of Puerto Rico, Hawaii, Guam, and the other insular territories, strengthening the nation’s capacities to exercise military power on behalf of its interests as well as providing businesses with further opportunities. Scholars can debate whether we should call “imperial” those policies that have treated involuntary African immigrants and their descendants, and later unauthorized immigrants, as labor resources denied access to full membership in the U.S. citizenry. Regardless, they represent forms of protection for peculiar interests that America’s governing institutions, including courts interpreting the Constitution, have historically mostly upheld.

That past and present reliance on imperial governance as a means of garnishing the support of the powerful for the U.S. constitutional system has renewed significance today. As a legion of democratic theorists and billions of other people are vividly aware, the United States, as the world’s largest economy and only true military superpower, routinely makes coercively enforced decisions with enormous consequences for the lives of people outside the U.S., who are effectively governed without their consent. Consequently, demands for democratization now increasingly extend to challenges from around the world to the entire highly unequal global system of putatively sovereign nation-states, with America standing proudly if unsteadily at its apex.

But those challenges have provoked resurgences in authoritarian nationalism in the United States and many other countries, with policies centered on curbing immigration and shattering international institutions and agreements. And in the first year of the second Trump administration, the MAGA version of authoritarian nationalism has openly embraced renewed imperialism, including threats to acquire Greenland and perhaps even Canada by force; the suitably hideously named “Donroe Doctrine” justifying attacking and incarcerating or assassinating Western Hemisphere leaders unless they serve American economic interests; and military actions in the Middle East tied to wild hopes of acquiring Iranian oil and turning Gaza into an American tourist resort. These developments make clear that one very live option for adaptation of the American constitutional system to current internal and external demands for further democratization is an imperial presidency, claiming both constitutional and popular authorization while ignoring or repressing all the voices and evidence proving that these claims are nonsensical lies, and pursuing imperialist policies overseas that serve enough peculiar American interests to sustain the authoritarians’ power.

But most Americans do not support the adaptation of their system in that direction. While the possibility of mounting destructive divisions is therefore all too great, there is another more constructive paradigm they may seek to develop. As Skowronek explains, one of the fundamental ways that the United States has coped with conflicts and diversity within its ranks is federalism—a response embodied in the nation’s very name. When the Constitution worked more than it does at present, federalism was, Skowronek observes, “the cornerstone of the constitutional structure” and “the foundation of national comity,” a “safety valve for diffusing social antagonisms and keeping support for national power anchored in common ground.” It did so, however, by fencing off many forms of local hierarchy and domination from democratizing reforms. The nation’s history of constitutional adaptations has involved major shifts of power to the national level in part to better secure democratic rights, broadly defined, for all, against state and local violations. So while Skowronek recognizes a “reharness” of federalism as one of the progressive ideas for a suitable constitutional adaptation floating around today, he lists it as only one of many “hints” that falls short of “a more comprehensive reconceptualization” of America’s political project.

That judgment is probably right if we think of federalism only as shifting power between the state and national governments in America today. But federalism conceived as instrument of democratization that extends beyond those units, and indeed beyond the current formal political boundaries of the United States, could be central to a much more far-reaching adaptation of the constitutional system. Instead of perpetuating what remains fundamentally imperial governance over Indigenous communities and the insular territories, and instead of intensifying unilateral domination and sometimes engaging in direct annexation over peoples and lands outside the nation’s borders, the U.S. might commit more fully to trends already visible in the wake of the “rights revolution” of the post-World War II era. It might make fully equal states of those territories that wish that status. It might recognize for tribal communities and other territories greater powers of self-governance, while finding new and better ways to partner with them in cooperative governing arrangements, as Oklahoma and tribal leaders have struggled to do in the wake of the Supreme Court’s ruling in McGirt v. Oklahoma. It could similarly seek to strengthen, not eviscerate, partnerships in governance with Canada, Greenland, Mexico, and other regional political communities. Still more ambitiously, it could join in global efforts to revise the international political, economic, and legal institutions crafted after World War II so that they become more genuinely capable of responding to democratic choices of the world’s peoples, in ways that might more effectively address the many problems of economic development, climate change, immigration flows, energy production, and military security that transcend national boundaries and are often worsened by them.

To even conceive of what such expansive forms of federalism might look like, much less to build political support for them, will probably require accepting two related conceptual adaptations that will be hard to swallow. First, it will be necessary to cease thinking of the sovereignty of political communities as an absolute right to have final say over what the community does. Instead, as in some Indigenous traditions, sovereignty must be thought of as carrying with it an obligation to find ways of cooperating with other federated communities, embracing collaborations in governance and constructive compromises in pursuit of the communities’ goals to the greatest degree possible. Second, it will be necessary to accept wider diversity in the local languages, institutions, customs, and practices of federation member communities than many proponents of sovereign national power, both conservative and progressive, find bearable. In particular, the well-founded progressive fear that federalism might once again become a powerful instrument to safeguard local systems of domination, exploitation and oppression will need to be balanced by sober, empirically-formed assessments of whether accepting certain kinds of diversity in local institutions and practices within a stable though evolving super-federation works on balance to expand opportunities for democratic self-governance and human flourishing.

Even if those conceptual adaptations gain widespread assent, it will be enormously challenging to work out, programmatically and politically, how to adapt America’s constitutional system, and those of communities with which it will become more thoroughly aligned, in ways that can reassure enough powerful interests to make such expanded federated democratization possible. The path instead toward a paradigm of adaptation that champions presidential and national imperialism is sadly far clearer, and the United States is already on it. But as a sage even wiser than Professor Skowronek once said, “change is good,” even if the answer remains, “yeah, but it’s not easy.”

Rogers Smith is the Christopher H. Browne Distinguished Emeritus Professor of Political Science at the University of Pennsylvania. He can be reached at rogerss@sas.upenn.edu.

“Adaptability” as a constitutional norm (and problem): Reflections on a Skowronekian Constitution

2026-03-26T09:30:00.001-04:00

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

There is much that one can say about Stephen Skowronek’s important new book, which I read in manuscript and immediately began assigning, in part, to courses I taught on reforming the United States Constitution at the Harvard Law School. One of its many virtues is its accessibility to all potential audiences. It deserves a wide readership and, more to the point, discussion. What I want to do here is to focus very closely on the title of the book: The Adaptability Paradox: Political Inclusion and Constituitonal Resilience. The “paradox” he points to suggests some very disturbing features of American constitutionalism from its outset to the present day.

It is becoming ever more clear that the United States, at its founding moment(s), whether 1619, 1776, 1787, or even 1868, could hardly be described as a “democracy” under even capacious 21^st century notions of that term. The United States is well described as a “herrenvolk democracy” for much of our history. As Mark Graber has demonstrated in a forthcoming essay addressing the “democratic decline” within the United States, one should recognize that most of American history features attempts by ruling elites to resist the democratic impulse, save perhaps those linked with white males. So 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 domestic 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, roll them back.

With regard to “inclusion,” begin only with the notion of “universal” suffrage and the degree to which that requires accepting the “adaptability” it signifies . Even if one recognizes that no rational person would support truly “universal” suffrage—think only of five-year-olds!—the notion is now a “term of art” referring to the absence of restrictions based on race, gender, religion, and class. (Age, as already noted, is something else.) All, of course, were present in 18^th century America and some survived well into the 20^th century. Akhil Reed Amar may be correct that the elections for delegates to the state ratifying conventions in 1787-88 were the most “democratic” in world history up to that point, but that only underscores the relative recency in world history of the concept of “government by the people” (as distinguished, say, from “government for the people, itself also a break from earlier notions of class rule). “Government” in 1787 America was clearly limited to rule by white men, almost all of them, practically speaking, Protestant and propertied. Eighty years later, the Congress that proposed the 15^th Amendment rejected a proposal that the ban on racial limitations be extended to the ability to serve in office; it was a hard sell for many even to agree to suspending that bar for the basic right to vote. And, of course, in too many ways the Amendment simply became what Madison had earlier called a “parchment barrier,” to be breached by “legal” mechanisms like poll taxes or literacy tests, as well as overt intimidation and violence. Only with the passage of the now-being-gutted Voting Rights Act of 1965 did “universal suffrage” with regard to race become even close to an actuality in the United States. We should also remember that many female suffragists opposed both the Fourteenth and Fifteenth Amendments because their proponents (and the texts) simply disregarded the fact of women’s being excluded from participation in their own governance. That came along only in 1920.

Moreover, whatever the remarkable diversity of American life even from the beginning, however dated, it has only increased in my own lifetime. I was born in 194 under the continuing regime of the 1924 immigration act that functionally prevented few other than Northern Europeans from entering the country. The United States certainly did not cover itself with glory with regard to welcoming Jews (and others) driven away from Germany in the 1930s. All of us are well aware of the importance of the Civil Rights Act of 1964 and the Voting Rights Act of 1965. But equal attention should be paid to the repeal of the 1924 Act in 1965, which opened American borders—and generated a host of issues surrounding the notion of “inclusion”—as had never been the case before. Europe as a source of immigrants was quickly supplanted by Mexico and Latin America, as well as by Asia and Africa.

What all of this means is that many of the central issues of American politics, including their constitutional dimensions, involve the degree to which a decidedly non-homogeneous populace of immigrants, who upon attaining citizenship also become voters participating in the process of self-governance, will be genuinely included (and welcomed) rather than being viewed as sources of disruption and, indeed, danger to preserving some notion of a “real America” based on ascriptive identity. Rogers Smith in his invaluable book Civic Ideals identified the tension, from the beginning, between a universalistic liberalism that talked the language of natural rights enjoyed by all human beings, who were ostensibly equal—this is the optimistic reading of the Declaration of Independence—and a distinctly non-liberal tradition based on “ascriptive” identity. Whether it’s true that for every universalistic liberal, there was a JD Vance speaking the language of blood and soil (and, usually, religion), that has been a continuing battle, both intellectual and, not infrequently, quite literal, in American life. One should recall that important elements of the Republican Party that elected Abraham Lincoln came from the rabidly anti-immigrant Know Nothing Party. And one should also remember that Lincoln, who genuinely hated slavery, was also an avid supporter of the American Colonization Society and, as late as 1862, was still entreaties Black notables in Washington to lead what Mitt Romney might have called a movement of “voluntary self-deportation” to Panama (or Haiti, Liberia, or ….) rather than remain in the United States. In this Lincoln emulated Thomas Jefferson, who justified his lack of any action with regard to ending slavery on the basis that he could not envision a post-enslavement United States that required Blacks and whites to live together in harmony.

Those attracted to “family metaphors” in politics, such as references to the “American family,” might imagine the the “adaptability” issues that are presented by what we still often call “intermarriage,” whether racial, ethnic, or religious. Strongly Orthodox Jews, for example, respond to what sociologists term exogenous marriages by saying Kaddish, the prayer for the dead, for the miscreant out-marrier. No doubt there are similar responses in some other religious communities. A staple of literature is a child being “disowned” by parents for violating parental assumptions about proper marriage partners. “Adaptation” to frustrated expectations may be difficult if one lives within a belief system that privileges homogeneity (or various hierarchies within non-homogenous orders). What is true at the “micro-stage” of family relations can obviously take place at the macro-level of societies and particularly those states that conceive of themselves as “nation-states” that, by definition, involve shared attributes other than the coincidence of sharing territorial membership.

Some families, of course, do display “resilience.” The minimal criterion is what might be called toleration and acceptance, even if not complete emotional acceptance. Beyond that, of course, is perhaps what Nietzsche might have called “transvaluation” in which a family that had previously cherished its homogeneity now develops a genuine appreciation for pluralism and diversity. George H. W. Bush was, perhaps, speaking with typical awkwardness when he referred to his “Mexican granddaughter,” the child of Jeb Bush and his Mexican-American wife, but there appeared to be little doubt that the patrician Bush genuinely cherished his progeny.

All of this being recognized, we should acknowledge that “resilience” is easier for some than for others, and it is therefore not surprising that a country built on a multi-century legacy of proclaimed homogeneity and superiority would have trouble adapting to, and even more certainly cheerfully accepting, a significantly new reality. I very often quote the following passage from John Jay’s Federalist 2, who expressed his great “pleasure”

that Providence has been pleased to give this one connected country to one united people--a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs, and who, by their joint counsels, arms, and efforts, fighting side by side throughout a long and bloody war, have nobly established general liberty and independence.

I also always note not only that Jay was a notably intelligent member of the Founding generation—he would go on to become the country’s first Chief Justice of the United States Supreme Court, which he left to serve as governor of New York—but also that, as a New Yorker, he was most certainly aware that the Constitution had quickly been translated after its public debut in September 1787 into Dutch so that the descendants of those families who had settled New Amsterdam (before its being conquered by the British and renamed after the Duke of York) could understand it and decide, when voting for delegates to the state ratifying convention, whom to support as between its proponents (like Jay) and opponents. He probably knew as well that it had been translated into German for the benefit of the roughly one-third of that state’s population who, to the consternation of Benjamin Franklin, continued to speak their native language and seemed reluctance to assimilate into a Pennsylvania culture dominated by those who identified with Great Britain.

One might hypothesize that Jay wrote what he himself had to recognize as a remarkably tendentious and inaccurate description of the actualities of America in 1787 because he realized that the Constitution would be a much harder sell, in New York and elsewhere, if he forthrightly acknowledged that it was establishing a polity in which a newly empowered central government would have vast new powers over every single member of the ostensibly singular “People” in whose name the Constitution was being “ordained.” Agrippa, an anti-Federalist from Massachusetts, expressed his deep skepticism that a single government could establish genuinely legitimate rule over the “peoples” spread out from what is now Maine to the southern border of Georgia. Even if enslavement had not so obviously divided the United States and created a “house divided” that would ultimately destroy the existing Union, there were many other differences that might challenge one’s appetite for “inclusion.” Massachusetts had, of course, earlier driving Roger Williams out of the state to what became Rhode Island, as well as hanging four Quakers for their heresy. Not surprisingly, Massachusetts maintained an established (Congregational) church until 1833. One plausible way to read the First Amendment’s ban on established religion is as limiting Congress’s power to interfere with the various religious preferences or establishments that were still present when the Amendment was added to the Constitution in 1791.

It is a reality of American political life in 2026 that we continue to be rent not only by racial and ethnic cleavages, but also by a fundamental cleavage between those who yearn for a “Christian Nationalist” America—like predecessors who supported overtly amending the Constitution by declaring the United States to be a “Christian Nation”—and those who are basically horrified by such a vision. This latter group ranges from full-blown secularists to Christians like, say, New York Times columnist David French who continue to support a strong separation between church and state.

Skowronek introduces the “adaptability paradox” as follows (p. 23):

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. The text abides beside a long history of development that has pressed the boundaries of constitutional plausibility and political credibility.

The “paradox” is perhaps that we as a society envision the Constitution as the foundation not only of unity, but also as stability through time. Thus the allure of what some of us regard as a patently indefensible notion of “originalism” that fixes the Constitution’s meaning in the dictionaries published either at the turn of the 19^th century or, for some, 1868. Antonin Scalia proudly defended a “dead” Constitution because the very idea of a “living Constitution” seemed to challenge why we might want a constitution in the first place, which was to tie us down, to supply what Jefferson called “chains” that would prevent us from violating its commands or breaching its limits. “Adaptability” was not Scalia’s priority! But John Marshall was certainly correct when he wrote, in McCulloch v. Maryland, that we must never forget that the Constitution was “designed to endure,” and that such endurance was possible only so long as “it was adapted to the various crises of human affairs.” That sentence itself continues to be of enduring importance, and insofar as various sorts of “inclusions” are viewed as among the “crises” facing the United States, it will capture a fundamental feature of American political debate and concrete political actions.

Birthright Citizenship and the Politics of Constitutional Law (Part III)

2026-03-26T09:00:00.005-04:00

Pranjal Drall and Samuel Moyn

Our first two posts have analyzed how marginal legal positions are politically mainstreamed and surveyed that normalizing process in the great case on birthright citizenship, Trump v. Barbara, so far.

Before long, even those who thought the government’s position was laughable or dishonest end up arguing over the “true” meaning of the 1866 Civil Rights Act, whether it is appropriate to use private letters, and whether the holding in Wong Kim Ark included a domicile requirement. The open rage and the strategic awareness, visible on social media, are filtered out by the time the arguments reach the merits stage. Of course, they are professionally impermissible in oral argument. That is what legalism, pretending the law already resolved the dispute even as it is being pushed somewhere new, requires.

The benefits of liberal and left engagement in this manner are unclear, and their downsides stark. We seem to forget that the revisionists do not need to win the argument cleanly. They just need the argument to be plausible and liberals, by responding to the argument on legalist and originalist terms, make it easy for the Supreme Court to treat it as an open question.

The NFIB experience might have taught liberals that ridicule and disbelief are not winning strategies. The individual mandate challenge did not succeed or fail based on the quality of legal argument. It turned on political dynamics that determined which readings of the Commerce Clause were conceivable and credible. If that is also true for the Citizenship Clause, then academics ought to openly discuss whether it makes sense to engage on originalist terms at all, whether to call out the revisionism as a political project rather than a scholarly one, and whether to attack the good faith of the elite legal actors on the other side pretending otherwise.

Those are strategic judgments with difficult tradeoffs. The normalization of your enemy’s argument might happen anyway, and it could shift the right left as much as it shifts the Constitution right. And perhaps this mode of engagement is strategically necessary because current judges ultimately need to be supplied “originalist” arguments for birthright citizenship. But treating routine engagement on the merits as the only option, without even acknowledging the choice, is the mistake liberals made in NFIB and are making it again here, even if this particular mainstreaming effort is likely to fail. Doing so requires collusion on interpretive method, which moves our jurisprudence to the right, and may be extremely ill-advised if it obscures other options that are far less costly or more viable or both.

In NFIB v. Sebelius, liberals could claim a mixed victory at best. The individual mandate of Obamacare was saved, but only at the price of cutting the Medicaid benefits of millions that Congress had enacted for them. The decision further eroded the expansive authority the Commerce Clause had once consensually provided Congressional legislation.

More important, the die is very likely going to be cast by disagreement among conservatives. The justices may choose to not even reach the constitutional scope of birthright citizenship—since it is both easier and equally open to them in Trump v. Barbara to hold the Executive Order in violation of legislative command. If they do address the constitutional issue and reaffirm birthright citizenship, it is not going to be because Trump’s supporters simply failed to find convincing enough legal arguments. Instead, it will be that propitious enough circumstances did not come together to allow the interpretive shift they advocate.

Even Barnett acknowledged as much after watching Chuck Cooper, founder of Cooper & Kirk and “eminent conservative lawyer,” testify in support of the challenge to a House Subcommittee: “Has the intellectual challenge to the contemporary ‘conventional wisdom’ about ‘birthright citizenship’ been mounted too late to prevail at the Supreme Court?” It is equally possible that there was too much time by the moment the battle was finally joined. After its frightening first year, the second term of Trump’s presidency looks like a spent force. No one should have ever thought that the Supreme Court was “in the bag” for Trump. It was closer to the other way around. Since January 2025, far from playing out a strategy of placating a tyrant or saving risky pushback for later and more momentous issues, the court’s majority got to fulfill its own plans for empowering the president as the chief executive thanks to the opportunities Trump provided it. By comparison, the erosion of birthright citizenship has never been a priority for any of the current conservative justices, and they may be looking for opportunities to distance on themselves from Trump on such issues.

Thus, even the anticipated victory in Trump v. Barbara for an expansive conception of birthright citizenship, if it happens, is not going to be due to liberal self-involvement in the dynamics that lead to it. The best predictor of the Supreme Court’s decision-making in a case such as this, is not whether liberal lawyers prove convincing but where conservative politics is at. If lawyers continue to run victory laps for the rule of law when the Supreme Court stops Trump on birthright citizenship or the Federal Reserve, as it has already done on his assertion of tariff authority, they will have mistaken the Court’s continuing strategy of self-aggrandizement for the success of legalism.

It is striking, in this context, that liberals have forsaken the cause of arguing for birthright citizenship politically and in principle. This failure is all the more stunning in a global environment in which immigration backlash will continue to be salient in future years and in which citizenship based on blood rather than soil continues to be a dominant policy choice across the world.

The political opposition to Trump has done an excellent job eroding the support Trump thought his second election provided for aggressive immigration enforcement—to the point that leading Republicans are rethinking it. But when it comes to establishing political support for birthright citizenship, however, we have done little besides validating the originalism that will continue to have dreadful consequences in other areas of law.

Maybe the Framers of the Fourteenth Amendment believed in birthright citizenship without further exceptions. Maybe the Supreme Court will agree they did. Even if so, it won’t provide much reason to think that liberals have learned the right lessons about how their current political strategies are working. This is not the first time, and it will not be the last, that conservative originalists could not agree on what policies to project onto the Framers. Their disagreement may matter far more than the fact that liberals stooped to adopt their interpretive methods for the sake of a win. And it will not save liberals the trouble of earning a political victory.

Pranjal Drall is a J.D./Ph.D. student at Yale University. Samuel Moyn, Kent Professor of Law and History there, is author of “Gerontocracy in America: How the Old Are Hoarding Power and Wealth—and What to Do About It.”

Too Much or Too Little Adaptation?

2026-03-25T10:00:00.007-04:00

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

Emily Zackin

The Adaptability Paradox is a sweeping and novel account of America’s current political predicament and its causes. The book teems with the synthetic insights we have come to expect from Stephen Skowronek, a genuinely foundational scholar of the American state and its development. It offers a challenging and counterintuitive thesis, worthy of careful interrogation.

The Adaptability Paradox argues that over the course of U.S. history, the Constitution has weathered recurrent democratic challenges by repeatedly adapting to them. Now, however, the Constitution has adapted so much that it can no longer serve constitutional purposes; it has come “unbound.”

A similar-sounding critique often stems from concerns about the proper method of constitutional interpretation and is typically coupled with the complaint that new readings of the Constitution are so wholly untethered from its text and history that the document is now unable to constrain its interpreters. Such diagnoses of our unbounded constitution typically describe the judicial abandonment of textualism and an embrace of unenumerated rights as either causes or symptoms of this disfunction. But this book does not retread that familiar ground. In fact, The Adaptability Paradox is not very interested in our relationship to text or the ways it might constrain us.

The problem that The Adaptability Paradox describes is even bigger and possibly even scarier than the Constitution’s inability to constrain its interpreters. Its view of the Constitution is not as the legal document that courts interpret, but as the set of institutional arrangements through which we channel political conflicts to make governing decisions. In this context, “unboundedness” conveys not a departure from text-bound readings, but the absence of any outer limits to our politics. The consequence, it contends, has been a fundamental inability to govern ourselves using the institutions we’ve got. In other words, the existing procedures for contestation can no longer channel or even temporarily resolve our political struggles, so that we are now turning in a widening gyre, in grave danger of falling apart. The analytical meat of the book is its argument about why the center of American politics will no longer hold.

The Adaptability Paradox argues that the “full inclusion” of previously excluded groups was the decisive adaptation that rendered the constitutional system unworkable. The success of the Civil Rights Movement, it claims, unleashed a politics that our system of government could not contain. This is an extraordinarily provocative thesis, one which we must be careful not to misread. It is not an argument that we should return to exclusion nor that oppressive status hierarchies are or were morally defensible. As I read The Adaptability Paradox, it stipulates that exclusion was a normative failure, but notes that, as an empirical matter, it was also an instrumentally important feature of our constitutional development. But why would that be?

Why would exclusion have been so essential to the ongoing functioning of the Constitutional system? The book describes the importance of exclusionary hierarchy through the metaphor of “ballast.” I take it to mean that the people who stood to lose from adaptations to the constitutional system were willing to accept those changes as long as they could be assured of their continued status atop the oppressive hierarchies they maintained. Potential spoilers could, in other words, be consistently bought off with the promise that, whatever other compromises were required of them, the loss of oppressive status hierarchies would not be among them. The New Deal Coalition, for example, was only maintained by the blind eye that the Democratic Party turned to Jim Crow segregation. Before that, Whigs and Democrats developed a national party system and governing apparatus that, for a time, prevented slavery from dividing either party along sectional lines. Racial oppression was, time and again, a boundary for white political leaders hoping to garner support across sectional divides.

This analysis is consonant with a larger literature on constitutional survival, one that argues successful constitutions must be self-enforcing. The logic here is that no external authority stands outside a constitution, able to punish violations. Therefore, if powerful actors think it is in their interests to simply ignore a constitution, they can and will. Thus, constitutional survival depends on these actors’ continual determinations that it is more beneficial for them to support the system than to subvert it. Constitutional federalism is often described in similar terms, as a mechanism to ensure a constitution’s survival by bracketing off the issues that might threaten it. By allowing subnational polities (or perhaps elites) to maintain authority over the kinds of decisions that would cause them to blow up the system if they lost, federalism serves as a constitutional safety valve. In the United States, this often meant that white citizens were promised the governing autonomy to continue to exclude Black citizens. Indeed, The Adaptability Paradox highlights the loss of subnational autonomy over questions of racial equality as one of the key developments that led to constitutional failure.

The idea seems to be that the Constitution got stretched one too many times, like an elastic waistband that eventually lost its ability to hold anything in place. We might imagine, though, that the system is not suffering from a kind of structural or mechanical failure, but from a lack of democratic competence on the part of some of its citizens. In another work on the anxieties of American democracy, Talking to Strangers, Danielle Allen identifies a different paradox as crucial to the politics that followed the Civil Rights Movement. The central paradox for Allen is not that too much adaptation has rendered the Constitution unadaptable, but that democratic citizens are collectively promised sovereignty yet individually required to accept repeated losses at the hands of their fellow citizens. In Black Grief/White Grievance, Juliet Hooker presses this insight further, arguing not only that the ability to accept political loss is an essential attribute of democratic citizenship, but also that white grievance about a loss of status has proven a potent anti-democratic force. Rather than exhibiting the capacity to tolerate the experience of loss, aggrieved white citizens have viewed movements toward equality as unacceptable forms of defeat. This account seems similar to the one that The Adaptability Paradox offers us—once racial hierarchy was less available to soften other political losses or incentivize participation in the broader political system, those who felt hierarchies dissolving beneath them turned their sights on the system itself.

If this reading of the book’s central argument is correct, I wonder about the emphasis it places on adaptation as the source of constitutional failure. We might argue that, by definition, a constitutional system has failed when its participants choose to blow it up. But when that choice is a response to the system becoming more just, it is surely more consonant with our moral intuitions to lay the blame at the feet of those who would destroy the system in order to resist movements toward equality and inclusion rather than blame inclusion for its destruction.

Of course, The Adaptability Paradox argues that it is not just aggrieved white racists who were radicalized by inclusion, but also those on the left, who lost faith in the capacity of the administrative state to solve social problems or to treat people in respectful and egalitarian ways. I think the argument here is that after inclusion, different people began to ask radically different things of the constitutional system—some wanted continued exclusion, others the advancement of egalitarian ends through egalitarian means. Faced with a plethora of mutually exclusive demands, Congress could not function well, so that people began to pursue their policy goals through other institutions. Courts, for example, became ever more important to the policymaking process and Presidents increasingly tried to govern without the Legislature. The fundamental engine of these changes, though, was inclusion. After inclusion, Skowronek tells us, people began to make such incompatible demands on the state that no one ever received enough from it to satisfy them.

This account left me wondering not only about the book’s emphasis on inclusion rather than racist resistance, but also about the other sources of constitutional breakdown. I suspect there are other forces at work that also deserve a central place in this narrative of democratic dissatisfaction and decline. Chief among them might be economic change and dislocation. Perhaps the problem was not simply that hierarchies used to reassure people about the value of and limits on the state, but that the world changed around the state in ways that rendered its solutions and procedures less satisfying. The Adaptability Paradox reports that, “Once everyone was included, no one felt safe. Anxiety was universalized” (117). But maybe we can attribute this anxiety at least in part to the sensation that access to material security and dignified work had been rendered scarce or precarious.

The book’s concern about the risks of dissolving hierarchies seems almost entirely to emphasize social hierarchies, like race and gender. Through this lens, the important change that occurred over the past half century was that hierarchies were put under pressure, so that they began to break down. But there is at least an argument to be made that, over this same period, class hierarchies were not dissolving but reasserting themselves. It witnessed rising wealth inequality and declining economic mobility. Labor’s political power eroded. I do not mean to suggest that we should choose either race or class as the central problem of American politics; they are inextricably intertwined. I do suspect, however, that “full inclusion” is an insufficient explanation for the sensation of insecurity and existential stakes that The Adaptability Paradox seeks to diagnose.

In fact, I think the book’s conclusion points in this direction. It is critical of the left-leaning reformers of the late twentieth century who pursued egalitarian policies without thinking more deeply about the adequacy of state structures. Unlike the Progressives of the early twentieth century, liberals of the late twentieth century did not seek to reshape the national state. Skowronek suggests that we need a constitutional reinvention as dramatic as those that he chronicles in his earlier studies of the American state. This claim gestures toward a different analysis than that inclusion simply broke the system. The problem, we might think, was not one too many adaptations or full inclusion, but an incomplete adaptation and a failure of inclusion. A state and party system with an old form (developed to meet the challenges of national industrialization) was being asked to do very new kinds of work (to meet the challenges, for instance, of globalization, de-industrialization, and multi-racial democracy) without the structural changes to either state or party system that could facilitate a democratically satisfying response.

This account seems to offer a more meaningful chance of redemption than the inclusion-only story. If the problem we face is the need to create a constitution that can meet both the expectation of full inclusion and the demands for exclusionary hierarchy, it is hard to see how any constitution could reassure everyone that the system will serve them. It seems at least possible, however, to imagine that a new constitutional arrangement might better meet the widely shared economic anxieties of this era.

Emily Zackin is Associate Professor of Political Science at Johns Hopkins University. You can reach her by e-mail at ezackin1@jhu.edu.

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Balkinization Symposium on Stephen Skowronek, The Adaptability Paradox

2026-03-25T09:30:00.001-04:00

This week at Balkinization we are hosting a symposium on Stephen Skowronek's new book, The Adaptability Paradox: Political Inclusion and Constitutional Resilience (University of Chicago Press, 2025).

We have assembled a terrific group of commentators, including Elizabeth Beaumont (UC Santa Cruz); Nikolas Bowie (Harvard); Andrea Katz (Washington University), Jeremy Kessler (Columbia), Sandy Levinson (Texas), Robert Mickey (Michigan), Rick Pildes (NYU), Noah Rosenblum (NUY), Rogers Smith (Penn), and Emily Zackin (Johns Hopkins).

At the conclusion, Steve will respond to the commentators.