As an academic, I have worked in various fields, but my dominant passion has been the libertarian pursuit of free markets and freedom under the law. In recent years, I have focused mainly on constitutional originalism. At the University of San Diego, I am the Director of the Center for the Study of Constitutionalism and have a book coming out next year from Harvard, Originalism and the Good Constitution (co-authored with John McGinnis), which presents a new defense of originalism.
We live in a polarized era in which mutual suspicions and animosities increasingly define our politics. In such a period, constitutional law can take two forms: a continuation of political conflict by other means, or a search for neutral principles of civil liberty that may be mutually reinforcing across the nation’s political divides.
In a forthcoming essay, I urge courts to pursue the latter course by embracing an ethos I call “symmetric constitutionalism.” When possible, I argue, courts should lean towards outcomes, doctrines, and rationales that confer valuable protections across both sides of the nation’s major political divides. By the same token, they should disfavor understandings that frame constitutional law as a matter of zero-sum competition between competing partisan visions.
To offer some examples at the outset, the First Amendment requirement of content-neutrality for laws regulating expression of ideas is paradigmatically symmetric: it protects all speakers no matter what they are saying and wherever they fall on the ideological spectrum. By contrast, the Court’s holding in District of Columbia v. Heller that the Second Amendment protects an individual right to bear arms is paradigmatically asymmetric: whether or not it was ultimately correct, Heller effectively constitutionalized one ideological position in the fraught political debate over gun rights.
Why might a judicial ethos favoring symmetry be valuable? As readers are no doubt aware, American politics at present are highly polarized. The Pew Research Center has reported, for example, that Americans in 2017 were more sharply divided than at any point since the poll began in 1994. Roughly half of each side’s partisans (and higher proportions among those most engaged) reported in 2016 that the other side made them “afraid.” Another recent survey found that some “15 percent of Republicans and 20 percent of Democrats agreed that the country would be better off if large numbers of opposing partisans in the public today ‘just died.’”
This political environment has important implications for constitutional law. For one thing, the two major political coalitions are increasingly associated with competing constitutional visions. In addition, at a more granular level, partisan divisions tend to encourage public focus on case outcomes—on which partisan camp “wins” or “loses” in a given case—at the expense of more general procedural or structural commitments. Through both these vectors of conflict, polarized politics threaten to infect constitutional decision-making and complicate courts’ capacity to resolve legal and constitutional questions for the polity.
The problem seems poised to grow worse. So long as Justice Kennedy was the Court’s median Justice, his idiosyncratic preferences ensured a rough bipartisanship in the Court’s output: conservatives got gun rights and campaign finance; liberals got same-sex marriage and abortion rights. Now, with the more consistently conservative Chief Justice Roberts as the median justice on hot-button issues, the risk of backlash, and a resulting downward spiral of institutional degradation, has likely increased. Indeed, following Kennedy’s retirement and the bitter fight over Justice Kavanaugh’s confirmation, some progressives are openly advocating such bare-knuckle tactics as defying Court decisions or expanding the Court’s future membership.
Symmetric constitutionalism could help courts preserve both their own authority and important civil liberties in this fraught political environment. By self-consciously preferring symmetric holdings, doctrines, and rationales over asymmetric ones, courts might interrupt partisan conflicts over constitutional law, demonstrate their apolitical bona fides without abandoning core commitments, and call the public’s attention back to shared values embodied in our constitutional order.
How precisely could they do so? As a general matter, a preference for symmetry should operate in the interpretive process as a sort of ethos, or disposition; it should place a thumb on the scale without necessarily being decisive. So understood, symmetry could constitute a value that judges with different primary interpretive theories (originalism, liquidation, living constitutionalism, or what have you) may equally incorporate into their decision-making.
In fact, some have advocated other such organizing dispositions, most notably judicial restraint or a generic preference for narrow decisions and rationales, as a response to the current political environment. Yet symmetric constitutionalism is far preferable.
If negative partisanship is creating risks of political overreach and selective disregard for civil liberty and constitutional restraint, then we don’t necessarily want courts to pull back from a robust role enforcing constitutional limits on democratic outcomes. Nor do we necessarily want minimalist constitutional decisions. On the contrary, because high-profile cases often carry a strong political valence in the immediate context, deciding no more than necessary to resolve the case at hand may only make the decision more polarizing. Courts should instead strive to anchor particular case results in broader frameworks with more symmetric implications across the universe of possible disputes.
Let me give a few examples, all drawn from Justice Kennedy’s last term on the Court.
First, consider Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, a widely followed case involving a Christian baker who refused on religious grounds to produce a custom wedding cake for a same-sex marriage. State authorities sanctioned the baker for violating state anti-discrimination laws, but the Supreme Court, in an opinion by Justice Kennedy, held that doing so violated the baker’s religious liberty because some state decision-makers expressed hostility to religion in the proceedings.
Masterpiece Cakeshop involved just the sort of conflict between competing constitutional values—marriage equality on the one hand, and traditional religious liberty on the other—that seems likely to grow more frequent in the current political context. From that point of view, one might say that Masterpiece Cakeshop enforced a rough symmetry by offsetting the earlier progressive “win” for same-sex marriage in Obergefell with a conservative “win” for the religious baker.
But even if that is true (and assuming the Court was correct to rule in the baker’s favor), a broader free expression rationale might have provided a more symmetric, less divisive, basis for the Court’s result. A free expression holding would at least have had the virtue of equally protecting progressive bakers asked to produce cakes (or other expressive goods) with messages they disagreed with. By contrast, amid current political configurations, the Court’s narrow religious-freedom holding seems most likely to benefit members of the conservative coalition.
Two other cases during the Court’s last term, Janus v. American Federation of State, County & Municipal Employees, Council 31 and National Institute of Family & Life Advocates v. Becerra (NIFLA), raised questions of symmetry more or less explicitly.
In Janus, the Court invalidated a requirement that public employees pay dues to a union. In NIFLA, it struck down certain required disclosures for pro-life crisis pregnancy centers. Both cases ostensibly involved applying the First Amendment content-neutrality principle, which I described earlier as a paradigmatic example of symmetry.
But in both cases the dissenters raised just the sort of critique for which my essay aims to provide better vocabulary: they complained about the majority not being “even-handed” and “weaponizing” the First Amendment. What they were really saying, I think, is that in these cases the Court extended First Amendment principles beyond their core application to ideological expression—and in doing so risked converting the formally symmetric doctrine of content-neutrality into a functionally asymmetric impediment to progressive regulation. This is precisely the sort of critique that I think we will, and should, see getting made more often going forward.
Finally, symmetry may be particularly helpful in thinking about the structural constitution. In a closely divided polity, it should be easy to imagine how the other side might use a given authority if the shoe were on the other foot. Too often, however, political focus on immediate substantive outcomes seems to blind the public to such broader ramifications.
The anti-commandeering doctrine, which the Court applied last year in the Murphy v. National Collegiate Athletic Association decision regarding sports gambling, could provide a model for navigating such conflicts. Under this doctrine, the federal government may request or encourage state assistance in administering federal law, but may not require it.
Whether or not it is correct on the merits, this doctrine at least has the virtue of being symmetric. Today, it may protect blue states resisting federal immigration enforcement with “sanctuary” laws, but yesterday it protected red states from the Obamacare Medicaid expansion, and in a future progressive administration it might provide a basis for resisting federal gun or environmental enforcement or some other progressive initiative.
In our polarized moment, courts should seek doctrinal principles with this quality of enforcing a basic constitutional value, like federalism, in a manner that is readily subject to even-handed application across different contexts with differing ideological implications.
Reaching symmetric understandings in the sense I advocate will not always be possible; often primary interpretive considerations of text, structure, history, and precedent will prevent it. But within the limits of controlling considerations, courts should aspire to craft a constitutional law with cross-partisan appeal. Doing so might stand a chance of mitigating political conflicts over constitutional law, thus helping to preserve our grand experiment in liberty under law during this difficult period of intense polarization.