Annotations for Speakers: Stephen Skowronek

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 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 [???] in Paris. His most recent book, uh, which will be discussing today, is the Adaptability Paradox, Political Inclusion and Constitutional Resilience.

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.

Uh, I, you know, Jefferson famously, uh, was skeptical of adaptation. He didn’t think that you 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 an early case, dealing with Congressional authority to create a national bank. And what’s interesting about that case to me is that it.

Well, uh, so what is an adaptation? An adaptation is, uh, a, uh, 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, uh, a system of institutions, and you think about continually. Uh, ... 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.

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 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, 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, 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.

So, yeah, so, 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 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.

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 polity that create a new polity that is incompatible with those institutions. So again, constitutional democracy is expanding under arrangements that then call the, 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 Wolin, 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, 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.

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, 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, 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 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.

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.

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 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 14th Amendment, the 15th amendment, they could still make it work. Uh, and I guess I’m wondering whether that’s the case.

Well, let’s, yeah. So let’s take three. So one is this new Juristocracy, Juristocracy. 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 Marshall, uh, example. Uh, uh, you know, uh, authorizing a national bank, the judges have a very spotty record of settling boundary 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 Warren court.

The American juristocracy 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 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 presidentialism.

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 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 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. Juristocracy, presidentialism, 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.

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, 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.

What should we do?

Well, well,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 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.

Thanks for having me.