This is Democracy – Episode 310: Have we Outgrown the Constitution?

2025-11-05-this_is_democracy-stephen_skowronek_master
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Voiceover: [00:00:00] This Is Democracy, a podcast about the people of the United States, a podcast about citizenship, about engaging with politics and the world

Zachary Suri: around you.

Voiceover: A podcast about educating yourself on today’s important issues and how to have a voice in what happens next.

Zachary Suri: Hello, and welcome to our latest episode of This Is Democracy.

I’m Zachary Suri. Today we’re going to be discussing, uh, an issue that I think. Uh, many of us have thought about in vague terms in the last few years as we watch our, our politics, uh, in so many ways descend into what cannot be described as anything but chaos. Um, but one that we probably have not thought of in such detail and with such thoughtfulness as our next guest.

Our guest today is Professor Steven Skowronek. Uh, professor Skowronek is the Pelota Parrot Professor of Political and Social Science at Yale University. In 2019, he was the wine hand visiting professor at the Rother Muir [00:01:00] American Institute at Ballo College Oxford. He’s also been a fellow at the Woodrow Wilson International Center for Scholars, and he has held the chair in American Civilization at the ko.

So in Paris, his most recent book, uh, which will be discussing today, is the Adaptability Paradox, political Inclusion and Constitutional Resilience. Other publications of his include Phantoms of AED Republic, the Policy State. Uh, and many other books, his research concerns, first and foremost, American National Institutions and American Political Aid Development, which is what we’ll be discussing today, specifically the development of the American Constitution.

We’re also joined, of course, by Professor Jeremy S. Good morning to both of you.

Jeremi Suri: Good morning, Zachary.

Zachary Suri: Wonderful. Well, I’d like to start our episode off today with a passage from Hamilton’s Federalist Paper 85, um, on the topic of perfection in the Constitution. The system, though it may not be perfect in every part, is upon the [00:02:00] whole.

A good one is the best that the present views and circumstances of the country will permit and is such. And one as promises every species of security which a reasonable people can desire. I answer in the next place that I should esteem it. The extreme of impotence to prolong the precarious state of our national affairs and to expose the union to the jeopardy of successive experiments in the iCal pursuit of a perfect plan.

I never expect to see a perfect work from imperfect man. The result of the deliberations of all collective bodies must necessarily be a compound, as well as the errors and prejudices as of the good sense and wisdom of the individuals of whom they’re composed. The compacts, which are to embrace 13 distinct states in a common bond of Amity and union must as necessarily be a compromise of as many dissimilar interests and inclinations.

How can perfection spring from such materials? Well with that as food for thought. I wanted to start by asking Professor Nik, how did the framers think of constitutional amendment and adaptability? [00:03:00] Do you think they expected we would still be operating off the same document?

Stephen Skowronek: Yeah. Uh, well, thanks for having me first.

I don’t think that they thought that it would last for 230 years, uh, without some major, uh, uh, rethinking. Um. They did provide for amendment, but amendments themselves change bits and pieces. Um, amendments themselves are, uh, a method of adaptation. Uh, so, uh, I don’t, uh, they didn’t, uh, provide, well, I guess they did with, uh, different methods of calling constitutional conventions, but I don’t think that they anticipated that.

We would just keep tweaking the thing forever.

Zachary Suri: That makes

Stephen Skowronek: sense. Uh, I, you know, Jefferson famously, uh, was skeptical of adaptation. He didn’t think that you [00:04:00] should read powers or arrangements into the Constitution that aren’t clearly stated. Uh, you know, uh, he says, uh, let’s not make it blank paper by construction, by continual interpretation.

Uh, interestingly, John Marshall had a different view. You know, he says that the Constitution was, uh, meant to endure for, uh, decades of time and to be adapted to the crises of human affairs. Uh, he said that, however, in a, in a early case, dealing with Congressional authority to create a national bank. And what’s interesting about that case to me is that it.

It didn’t produce consensus on an adaptation. In fact, it divided the political class in two. And, you know, in a couple of years, Andrew Jackson dismantled that bank despite, uh, despite Marshall’s claim that the [00:05:00] authority was in the Constitution. So, uh, I think that adaptation, adaptation has been a, uh, a complicated issue and becomes more complicated over time.

Zachary Suri: I wanted to ask the, the title of your book is The Adaptability Paradox, and we’ll obviously get to the, the paradox part of that conversation very soon. But what about the first part, adaptability. What does it mean for a constitution to be adaptable in this context?

Stephen Skowronek: Well, uh, so what is an adaptation? An adaptation is, uh, a, uh, a.

Changing parts of the system while carrying other parts forward and modifying several of those parts that are carried forward to work in conjunction with the new. So it’s a continual, uh, continual tweaking of a set of arrangements. If you think about the Constitution as a holistic set of institutions, [00:06:00] uh, a system of institutions, and you think about continually.

Uh, jetting some assumptions of, uh, some assumptions in that system. Adding some, some new things in. The question is how long can you keep doing that and still have the structure itself Makes some sense and have some, some coherent integrity and essential purpose.

Jeremi Suri: Uh, Steve, one of the, one of the points you make, uh, from very beginning, uh, of the book is that the constitution, this is your chapter in particular, unbounded resilience, that the Constitution was built around, um, limiting, limiting, uh, those who participated in it.

And through limiting the participants, it actually, uh, made it easier to form consensus. And at some level that. Putting together, uh, keeping a consensus together seems crucial for you.

Stephen Skowronek: Yeah.

Jeremi Suri: Why? Why is that? So, why, why, why wouldn’t the [00:07:00] opposite argument, the one that I think I’ve often made be true, which is the way I think of Madison’s argument on pluralism, that being large and being unbound.

It means that, as we did throughout the 19th century, you know, you can add two new territories, one for one side, one Democratic ter, one Democratic territory, one wig or Republican territory. Um, why isn’t that, why isn’t the unbounding, uh, actually an advantage?

Stephen Skowronek: Well, you know, Madison has two thoughts. Uh, one is the extended republic.

That is expanding the field of representation makes all interests safer. Uh, so it prevents the formation of tyrannical majorities. But if you look at Federalist 51, he also mentions a practicable sphere of self-government. So I don’t think that he thought it was limitless. I don’t think he thought that this extension [00:08:00] he was thinking of, of geographical extensions, but think about.

Extensions of democracy itself, of the inclusion of previously excluded groups. I don’t think that the Constitution contemplated that as, that as a limitless process. I think they thought, at least for their, the arrangements that they were setting up, that there was a practicable sphere of, uh, expansion.

And as it turns out, I mean, just empirically, um. Uh, those practicals practicable spheres were always premised on keeping some interests, uh, out, excluding some interests. And the interests that were excluded at the beginning were quite extensive, right? They were, they included wide swaths of the population, not just slaves, uh, but, [00:09:00] uh.

Women work, things that were excluded, work relations, gender relations, family relations, all of which, uh, worked according to other sets of rules. And I, I, in some, uh, the slavery exclusion was conscious, but these other exclusions were just, that’s, uh, we’re just assumptions, assumptions about, uh, about politics at the time.

So I think that the Constitution, uh. The Constitution has, you know, famously abstract language. It doesn’t recognize, um, uh, privileges of rank. Uh, but it was designed for the people who framed it. It was designed for the notables, uh, was designed by the notables of the 18th century. Around their assumptions of who was going to be running the show.

Right? And, uh, [00:10:00] I do think that the constitution’s general language, its abstract language, uh, opened the door to challenges from those who were excluded. And that’s how you get these, the, the democratization of the polity over time. Uh. And the Constitution continue, and elites trying to adapt the Constitution to that, um, to that expansion of the relevant polity.

But, you know, I come back to Federalist 51 where Madison says, you know, the, you have to think what is the practical sphere, the practicable sphere.

Zachary Suri: That makes sense. Um, what about the, the second part of the title of your book? The, the paradox part? What, what, what do what in, in, in sort of simple terms, is the adaptability paradox that you see at the center of our constitutional development?

Stephen Skowronek: So, yeah, so, [00:11:00] uh, the constitution’s most radical principles, that’s democratic principle. The sovereignty of the people. And as the people become more in the people who are included within the privileges, access to the privileges of the Constitution and the security of the Constitution, uh, as that expands every time it expands in a major way, we reconfigure the Constitution, we adapt it, we reorganize it, we rearrange it, we rewire it.

The paradox is that once we, the people becomes fully inclusive, which I would date to around the, uh, rights revolution of the sixties and seventies, once we, the people becomes fully inclusive, then the constitution seems to be [00:12:00] losing its capacity to reestablish firm footings and to stabilize the polity.

Once, uh, for successive rounds of inclusion, uh, we were able to reconfigure constitutional relationships and stabilize the polity. But since the rights revolution, we haven’t been able to agree on terms for accommodating all the players. Now, on the fold, the paradox is that once we the re we, the people becomes a reality, the Constitution loses its capacity.

To provide firm footings and stabilize the polity.

Zachary Suri: That makes sense. Um, you, you argue in the, in the preface to your book, that there are quote tensions inherent in the term constitutional democracy. Why is it that the sort of, uh, growth of the democracy end of that equation, uh, as you see it destabilize the system or led to this instability?[00:13:00]

Stephen Skowronek: Well, scholar scholars and, uh, American thinkers have noticed this tension between constitutionalism and democracy, uh, from the very beginning. I mean, Jefferson says, you know, you can’t keep it, you don’t adapt it. Have a constitutional convention every generation and reconfigure it. Don’t just keep reinterpreting it.

Uh, in the, uh, in the 20th century, John Dewey says, you know, um, uh, the arrangements that we set up to stabilize a particular polity, uh, uh. Create conditions for development that make this a new pol that create a new polity that is incompatible with those institutions. So again, constitutional democracy is [00:14:00] expanding under arrangements that then call the con those arrangements into question, call that constitution into question.

So Dewey says, you know, that the, the hardest thing for a democracy is to break through the arrangements. That were provided for it, but then, and no longer suited. And, uh, it’s dangerous because it’s hard to break through, overturn those institutions democratically. Uh, and then later in the 20th century you get Sheldon Wallen, who tells us that democracy is in, is inherently transgressive.

It’s inherently challenging the constraints, uh, and structures that. Define what a constitution is, which is a system of constraints, a structure of constraints, that democracy is constantly challenging. Those constraints and that constitutions are inherently regimes that, uh, [00:15:00] a particular set of, uh, democratic participants agrees, will secure their interests, then that democracy, uh, in a kind of dialectical fashion.

Develops, outgrows those arrangements and needs to challenge them and constrain them. So you get this constant that that is the tension in this compound constitutional democracy. Uh, how can you get the security and protection that constitutions promise, uh, in democracies which are inherently transgressive and constantly challenging the constraints.

Jeremy,

Jeremi Suri: so I I, I especially reading the, the latter half of your book, uh, Steve, you make a, a compelling case that you, that you just started to make that, that we’ve outgrown the, uh, the design and the architecture of our, of our constitution as it is. And you seem to lean toward building, as you [00:16:00] say, a, a civic and and con conversation.

A dialogue, uh, yeah. An educated Dewey instead of discussions. Yeah. That would lead to some sort of. New constitution, some sort of formal or informal constitutional convention. Um, first of all, are, are you confident that could happen? But, but the secondary question is, is that the right way to go? Or, or maybe the error of constitutional democracies, um, has passed, right?

I mean, there are many democracies, the English one of course, that, that operate without a constitution and have operated reasonably successfully, so. I I, is it worth going that route or is it worth finding an alternative to a constitution at, at all?

Stephen Skowronek: Um, yeah, so, uh, I’m, this isn’t a happy book. This is, uh, uh, it’s a book that, you know, tries to, um, just examine certain, uh, [00:17:00] dynamics that.

Run through American history and see where they’ve landed us, and I think they’ve landed us in a pretty tight spot. Um, yeah, so, and I think, I, I, what you say is exactly right. It might be time to open a question as to whether this constitution is, uh, serviceable for the democracy that we have become. I think that, uh.

The Constitution, uh, was, as I said, framed for the notables of the, uh, 18th century and, and the principles that we hold up, checks and balances, separation of powers, federalism. All of these things were designed to, uh, secure the participants of that time and also to keep other. [00:18:00] Uh, issues out and, uh, the intrusion of those other issues in particular since the Rights revolution.

Issues of social justice are simply were issues that the Constitution was intended to submerge and that it seems to be very ill-equipped to address now. My solution or my, uh, my ideal system. I don’t really, I, uh, uh, describe anything like this in the book, but I do say that the, uh, the objective would be a strong constitution that can service a fully inclusive polity and that we don’t have that.

We don’t have a strong constitution that’s effectively services a fully inclusive polity. Uh, that’s I think, what would be the ideal [00:19:00] circumstance. I think you do want the protections of a democracy of, of a, of a constitution. The legal protections, I think we see right now the, uh, the vulnerability of, uh, the protections that we were promised.

Um, so I’m not willing to give up on Constitutionalism. Uh, the question is, can we get a strong constitution that effectively services a fully inclusive polity? And my contention is that we do not have that now.

Jeremi Suri: If I could follow up quickly, Steve, a, a, a historical question. As I was reading your book and, and thinking about what you just said, which I think follows beautifully from your argument, I started to think, well, maybe this was actually an oversight by Lincoln because if there was a moment when there might have been, uh, a political entity that could have done what you just said, it might have been the Republican party [00:20:00] in 18 65, 18 66.

Stephen Skowronek: Yeah. Well, you know, um, the, one of the problems with reconstruction was that the radical Republicans, the radical Republicans were, um, were, or I should say the Republican Party was committed to adaptation.

Jeremi Suri: Right?

Stephen Skowronek: Right. They didn’t see that, in fact, the. The, uh, emancipation, uh, and the challenge to federalism through the entire system into question and Jerry rigging arrangements, um, you know, could work for a time could stabilize the system again.

In fact, it did work for another century. Uh, but that ultimately, uh, the [00:21:00] logic of gutting federalism. Which is, I think the constitutional implication of the civil rights movement is that it throws up all the contending principles of the Constitution of 1787. Throws them all up for grabs the contending purposes, uh, of, uh, the original Constitution.

Uh. Uh, the sovereignty of the people and federalism, the tensions, all of those tensions are, uh, released once the last exclusions are, uh, are lifted. And, um, yeah. So I, I do think that the Republican party, uh, as noble as its cause was, um. I thought that they could still make it work. They could still tweak it.

Right. The [00:22:00] 14th Amendment, the 15th amendment, they could still make it work. Uh, and I guess I’m wondering whether that’s the case.

Zachary Suri: Hmm hmm. I’m wondering, when you, when you think of the places where it’s not working today, what are the sort of institutions in particular that you would point to as indicative of a sort of inability for the Constitution to stabilize?

Stephen Skowronek: Well, let’s, yeah. So let’s take three. So one is this new Juris ocracy, Juris ocracy. The, uh, our increasing dependence on the Supreme Court to determine what the appropriate boundaries are. Now, we would think, oh, well that’s just the Constitution’s solution to how you settle boundary disputes. You give it to the court, but in fact, as I mentioned with the John Sel, uh, example.

Uh, uh, you know, uh, authorizing a national bank, the judges have a very spotty record of settling boundary [00:23:00] disputes when there’s no consensus on the underlying purposes, and we have no consensus on the underlying purposes, and we’re increasingly dependent on the court. And I’m not blaming the, uh, Roberts Court.

This began with the war in court,

Jeremi Suri: right?

Stephen Skowronek: The American juris ocracy arose alongside the rights revolution. Lemme take another example. What, uh, constitutional law scholars call hardball that is the doubling down on constitutional provisions that were meant to provide security and to, uh, foster buy-in from contending interests.

Constitutional hardball. Uh, is now, uh, uh, using constitutional provisions to sabotage the system. So we get, uh, you know, the routinization of impeachment. We get, uh, second amendment, absolutism, uh, we [00:24:00] get gerrymandering wars, government shutdowns, uh, uh, debt stealing, brinkmanship, all of this. This is not rewiring the constitution.

All of that can be. All of that can be justified by constitutional principles, but that’s not, that’s not rewiring the constitution. That’s the constitution going haywire. That’s using its provisions as weapons of sabotage. And I’ll end with a final example, which is, you know, the one closest to my other work, which is the rise of presidential.

Uh, which the court is complicit with, with this immunity decision that, uh, you know, the president stands at this critical intersection between national political mobilization and national administrative management. And what we’ve done on the mobilization side is [00:25:00] to, along with the rights revolution, create these personal parties where the president controls his own political machinery.

And on the management side, we’ve created this unitary theory of the executive, which gives the president a claim to exclusive and complete control over the power of the administrative branch of the executive branch. And that is not a formula for rewiring. That’s a formula for imposition, that’s a formula for, uh, volatility and divisiveness.

Uh, interestingly, the framers of the Constitution, what was their formula for the presidency? Their formula was management without mobilization. They sought to make the selection of the president indirect and blind to give him the executive power was to try to, was coupled with keeping him away from party interest in faction because they saw that a politicized president [00:26:00] in control of the executive branch.

Would undercut all the delicate balances that they had, uh, written into the rest of the constitutional frame. So I would say at least those three, those are the three that come to mind. Juris ocracy, presidential is constitutional hardball. These are things that are showing us that it’s not working, it’s not work, it’s not by what, what do I mean by working?

It’s not accommodating interests. It’s not stabilizing the system, the things that we assume that the con, that constitutions are meant to do.

Jeremi Suri: Uh, Steve, I I wanted to ask you a question that connects your analysis to some of the contemporary debates. You, you do this again toward the end of the book. Um, individuals like my own governor in Texas, Greg Abbott, have called for a constitutional convention.

Uh, and, and of course many states, uh, especially after the Civil War, had constitutional conventions to rewrite their [00:27:00] constitutions. Um, do are, are you in favor of that now, or, uh, how do you think we should move forward? Now after reading your book, if we’re persuaded by your argument,

Stephen Skowronek: right. Well, I would say that in writing this book, I became more sympathetic to Jefferson’s solution that is, you know, rethink the whole thing, every generation or so.

But also in rewriting the book, I came to appreciate that we’ve really dug ourselves pretty deeply into this hole. That in order to have a constitutional convention, think about the original constitutional convention where, you know, uh, contentious interests. I mean, uh, uh, diametrically opposed interests came together around some sense of a common purpose that is the North and the South.

Were able to subordinate their differences to exclude certain questions to, [00:28:00] uh. To, uh, uh, to, uh, participate in this kind of deeply impacted institutional system, uh, because they had in mind the promise of a great commercial republic. They could agree on that. We want this. Great, we see the potential for what this could be.

And, you know, we’re gonna figure out how to realize that potential while avoiding our, uh, our fundamental disputes. I just don’t see that there’s any agreement on fundamental purposes at the moment, and that I think makes a constitutional convention, uh, a dubious proposition and will become just another, uh, mechanism for imposition.

Or it’ll just deadlock,

Jeremi Suri: right? So, so, so what should we do, Steve?

Stephen Skowronek: What should we do?

Jeremi Suri: Yeah,

Stephen Skowronek: well, well, [00:29:00] so, right, that’s the big question. I don’t have a prescription. Uh, but I do think that, um, what I try to suggest at the end of the book is that to create conditions, create conditions on which we might be able to even discuss.

Uh, what an alternative governing framework might look like. And you know, those are long-term propositions. I’m not sure we have a lot of time, but those are long-term propositions. I would give them a shot. You know, I thi I, things like experiments with deliberative democracy. I think that those. Our deliberative forums or, you know, those kinds of things I think are, are, are constructive.

You know, I’m in favor of, um, this, uh, revival of interest in civics and civic education, although, uh, I think also [00:30:00] symptomatic of the time is that no one can really agree on what the curriculum is. Um, yeah, so I’m, uh, uh. What should we do? I think we should try to find some alternative means of communication and deliberation outside the constitutional structure that will allow us to think about what kind of government we want.

Zachary Suri: Well, thank you so much Professor Nik for, for joining us today. We encourage all of our listeners to go and read. Uh, professor Sach’s new book that is the Adaptability Paradox, political Inclusion and Constitutional Resilience, uh, out, uh, just now from the University of Chicago Press. Um, so please go read that by the book.

Um, and thank you, uh, to Professor Stephen for joining us, uh, on this episode of This Is Democracy, and thank you as well to Professor Surry.

Stephen Skowronek: Thanks for having me.

Jeremi Suri: Thank

Voiceover: you.

Zachary Suri: And thank you most of all to our wonderful listeners for joining us for this episode of This Is Democracy.[00:31:00]

Voiceover: This podcast is produced by the Liberal Arts ITS Development Studio and the College of Liberal Arts at the University of Texas at Austin. The music in this episode was written and recorded by Scott Holmes. Stay tuned for a new episode every week You can find this is Democracy on Apple Podcast, Spotify and YouTube.

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