Theoretical Reasons to Favor Symmetry

My last post on my new book Constitutional Symmetry discussed how a preference for symmetry would operate in practice. It also suggested that a preference for symmetry is already an inchoate feature of our law: it is a value embodied in contemporary interpretive practice, just not with sufficient clarity and rigor.

But if symmetry is already a part of interpretive practice, is this practice justified? In fact, as I mentioned, at least three sets of conventional theoretical considerations support a preference for symmetric constitutional understandings.

First, preferring symmetry accords with the character of our Constitution. We have what some scholars have called a "framework" constitution: for the most part, our constitution, unlike some others around the world, sketches the basic structure of our government without providing many details about its practical operation.

This open-ended character may be part of the reason why courts have assumed such importance in interpreting the U.S. Constitution. But it also supports exercising that interpretive function in a manner that respects disagreements instead of squelching them. Symmetry meets that goal: it orients interpretation toward maintaining the framework for continued political contestation rather than toward resolving immediate political fights.

Beyond its framework character, moreover, the framework our Constitution establishes has a particular orientation. Rather than take substantive choices off the table, the U.S. Constitution by and large prescribes democratic procedures for resolving any substantive policy conflicts that arise. There are exceptions, of course, but as John Hart Ely argued forty years ago in his classic Democracy and Distrust, this overall procedural orientation means that counter-majoritarian judicial rulings best accord with the Constitution's own character when they aid the political process rather than supplanting it.

During the period that Ely retrospectively theorized, the most important democratic distortions related to race and other oppressed identities, so the Supreme Court could best aid the political process by scrutinizing laws that disadvantaged those groups.

Today, problems of prejudice and disadvantage persist and counteracting them is an important function of constitutional law. But the most important distortion in the political process is different. It is no longer the systematic exclusion of some identifiable group from political participation, but instead the intensity of political conflict between rival political coalitions—and indeed between two coalitions that understand themselves in part to be defending key minority interests (such as racial and sexual minorities for Democrats and religious traditionalists for Republicans). Under contemporary conditions, therefore, political process theory should support efforts to mitigate constitutional partisanship by favoring symmetric understandings instead.

A second set of theoretical reasons to far symmetry relate to judicial role-morality, meaning the conventional moral expectations that attend judges' role in our society.

Judges are not supposed to be result-driven partisans; they are supposed to decide cases according to principles rather than preferences. But in the current environment judges' principles can be no less partisan than their specific case results. Indeed, the two rival constitutional visions I sketched in my initial post are essentially ready-made packages of positions that import key political goals into constitutional law. Because importing partisan preferences into constitutional law in this way is no less at odds with the judicial role than reaching result-driven results in particular cases, adherence to judges' proper social role should incline them toward symmetry instead.

This inference helps make sense of Herbert Wechsler's influential suggestion that constitutional law requires "neutral principles." For all his idea's influence, Wechsler offered no clear metric of neutrality, nor any theory of when interpretation should and should not prioritize neutrality over competing values. These oversights led him, notoriously, into the obtuse and self-undermining suggestion that Brown v. Board of Education failed to embody any neutral principle of constitutional law.

Symmetric interpretation sidesteps these problems. First of all, the form of neutrality it encourages is symmetry as between the most acute contemporary societal and ideological divisions, particularly those that divide the two major parties. Symmetry thus affords the metric of neutrality that Wechsler omitted. At the same time, however, because symmetry operates as a second-order preference rather than a hard-and-fast rule, judges need not pursue it when they believe the Constitution clearly dictates a different answer. Accordingly, some positions, like continued acceptance of de jure racial segregation in Wechsler's time, should fail even if they are symmetric with respect to some then-existing societal divisions.

Apart from political process theory and judicial role morality, originalism supports symmetric interpretation too. Indeed, a preference for symmetry should unite two otherwise divergent contemporary theories of originalism.

On the one hand, so-called new originalists recognize a zone of "construction" within which judges exercise a degree of judgment because literal "interpretation" of the Constitution fails to provide a determinate answer. Originalists in this camp argue that, in cases like these where the Constitution's original meaning is underdetermined, judges should follow the document's higher-level values and purposes instead; they should respect the Constitution's "spirit" when its "letter" runs out, as two scholars put it.

An opposing camp argues that such value-laden construction defeats the very purpose of originalism, which is to eliminate subjective judgments by binding judges instead to the Constitution's historical meaning. Originalists of this stripe argue advocate "original methods" originalism. They argue that judges should resolve constitutional ambiguities by applying interpretive methods that the Constitution's framers would themselves have anticipated.

Though opposed to each other, these competing strains of originalism should converge on symmetry. As concerns the Constitution's "spirit"—the higher-level values that properly animate the document—few concerns carried stronger importance for the framers than avoiding constitutional partisanship, or what the framers would have called "factionalism." Symmetric interpretation thus gives judges operating within the construction zone a concrete way to advance an animating framing-era concern about avoiding corrosive partisanship.

As for original methods originalists, they can find support for symmetry in framing-era interpretive practices. Contrary to the framers' hopes, acute partisanship emerged almost immediately as a defining feature of the early Republic, but the Supreme Court under Chief Justice Marshall responded by eschewing overt constitutional partisanship and instead favoring depolarizing understandings in important respects. One way in which it did so, moreover, was by imposing symmetric restraints on practices, such as prosecution for common law crimes or "constructive" treason, that threatened to generate corrosive cycles of political retribution. Marshall Court rulings thus support embracing symmetric interpretation as an original method of interpretation that even originalists skeptical of the "construction zone" can endorse.

In sum, at least three sets of widely accepted theoretical considerations—the Constitution's democratic orientation, judges' role morality, and constitutional originalism—all support favoring symmetric constitutional understandings when possible.

But if symmetric interpretation is theoretically justified on all these grounds, what positions would it encourage judges to favor? My last two posts will offer some examples.