Constitutional Symmetry
I’m grateful to Eugene and the other Volokh Conspiracy bloggers for hosting these guests posts on my new book, Constitutional Symmetry: Judging in a Divided Republic.
As readers may have noticed, the United States is closely divided over politics, and each political coalition advances a distinct constitutional vision that largely aligns with its political objectives.
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. As national politics have grown divided and polarized, achieving partisan goals through federal legislation has grown more difficult, so the two parties have dreamed, in effect, of capturing the courts and implementing their vision through constitutional interpretation instead.
This dynamic is not new and has existed at other times in the past, but it is perilous. It treats a document that should be source of shared commitments and stable ground rules as a vehicle for extending political conflict.
The book urges judges and justices to resist this constitutional polarization. It also offers them a specific means of doing so: judges should favor, when possible, constitutional understandings that are not politically one-sided but instead operate symmetrically, meaning that they offer valuable protections to interests on opposite sides of key current divides.
What would favoring such symmetry mean concretely? The First Amendment principle of content (or viewpoint) neutrality provides a good example. By protecting all speakers, no matter what they are saying, this understanding of expressive freedom ensures that those disappointed by the result in one case may equally benefit from the decision’s rationale in future cases. The anti-commandeering doctrine from the federalism context provides another good example. By shielding state and local officials from compelled admi
Article from Reason.com
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