The Material Foundations of American Constitutional Development

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.