Fifteen Eighty Four

The United States is divided over politics, and each major political coalition advances a distinct constitutional vision that aligns with its policy goals. Conservatives interpret the Constitution to protect religion, limit gun control, and obstruct federal administrative governance while allowing state-level regulation of moral questions like abortion. Progressives see a mirror-image constitution that advances social justice, confers broad federal power, and allows flexible administrative regulation while limiting state and local police authority and guaranteeing sexual and reproductive autonomy. This dynamic is perilous because it treats a document that should be source of shared commitments and stable ground rules as a vehicle for extending political conflict.

My new book Constitutional Symmetry: Judging in a Divided Republic urges judges and justices to resist this ongoing constitutional polarization by favoring what I call “constitutional symmetry” instead. Specifically, the book argues that judges should favor, when possible, constitutional understandings that offer valuable protections to interests on opposite sides of key current divides.

Current First Amendment doctrine provides a paradigmatic example of such symmetry. By requiring content (or viewpoint) neutrality in expressive regulation, modern American free speech cases protect all speakers, no matter what they are saying. These cases thus ensure that those disappointed by the result in one case may equally benefit from the decision’s rationale in the future. By contrast, the Court’s decisions recognizing an individual right to bear arms are paradigmatically asymmetric:  they effectively constitutionalize one side of the fraught political and social divide over gun control. Constitutional Symmetry argues that judges, when possible, should favor constitutional understandings that resemble First Amendment doctrine and not the Supreme Court’s recent gun rights cases.

Doing so will not always be possible. The Constitution’s text and other primary interpretive considerations will not always allow a symmetric interpretation, and in any event the Constitution is not symmetric along all possible dimensions of disagreement. Furthermore, I do not advocate embracing symmetry as a hard and fast rule. The book’s argument is simply that judges and justices should prefer symmetric understandings whenever their primary interpretive commitments allow them to do so.

By favoring symmetric understandings in this way, however, judges may craft a unifying rather than polarizing jurisprudence. Symmetry, moreover, may provide a shared point of orientation for judges who subscribe to different primary interpretive theories, such as originalism, textualism, living constitutionalism, or pragmatism.

Part I of the book advances theoretical reasons for favoring symmetry. For one thing, preferring symmetry is already an inchoate feature of American legal practice. In legal briefs, questions at oral arguments, and even court opinions and dissents, lawyers and judges regularly presume that constitutional understandings are more likely to be sound if they work equivalently in contexts with varied ideological alignment.

Beyond this grounding in practice, a preference for symmetry draws support from at least three strands of conventional interpretive theory. First, the political process approach associated with John Hart Ely supports symmetry. Political process theory aims to interpret the Constitution in a manner that counteracts systematic political distortions, and the most dangerous such distortion today is constitutional partisanship. Second, judicial role-morality supports symmetry as well. As many jurisprudential theories recognize, a distinctive feature of legal decision-making is that it seeks to ground particular outcomes in generalizable principles, and one common way in which judges can fall short of this expectation today is by orienting their decisions toward a political program rather than a set of neutral legal principles. Finally, originalism supports symmetry too. The Constitution’s framers sought to limit the damaging effects of partisanship (what they called the problem of “faction”), and when acute partisan divisions emerged in the early Republic, framing-era jurists such as Chief Justice John Marshall sought to interpret the Constitution in ways that defused political conflicts over its meaning.

Part II of the book turns to contemporary examples, offering illustrative understandings that judges should favor in several areas of current controversy. Among other things, Part II argues that judges should protect religious minorities, when possible, with decisions based on expressive freedom or freedom of association rather than religious liberty, that they should limit the reach of recent administrative law decisions barring agencies from resolving “major questions,” and that they should allow limited and indirect forms of race-consciousness in governmental decision-making.

At the same time, Part II defends the approach to recognizing unenumerated fundamental rights that the Supreme Court embraced in its controversial recent decision rejecting a right to abortion, and it likewise defends recent decisions rejecting constitutional limits on political gerrymandering as well as arguments that only state legislatures (and not state governors or courts) may draw district lines and select delegates to the Electoral College that selects U.S. Presidents.

Judges worthy of the name do not want to be remembered as result-driven partisans; they take seriously their responsibility to act as impartial stewards of the law. Given, however, the intense political pressures that buffet contemporary constitutional law, judges need better tools for maintaining a proper apolitical orientation. Constitutional Symmetry provides such tools and encourages judges to resolve cases in ways that reinforce shared commitments instead of degrading them.