Symmetry in Interpreting the First Amendment and the Structural Constitution
My earlier posts on my book Constitutional Symmetry explained the basic idea of favoring symmetry and summarized the practical and theoretical reasons for this approach. In addition to advancing this theoretical case for symmetry, the book includes chapters applying the theory to five contested areas of constitutional law:Â speech, association, and religion; separation of powers and federalism; equal protection; guns and fundamental rights; and the law of democracy.
The chapters themselves are more illustrative than exhaustive. As I explain, they do not address every relevant case or holding in the areas they cover, and they omit entirely major areas of constitutional law. The chapters do aim, however, to demonstrate that comparatively symmetric approaches remain open in many areas as potential pathways of case law development, if the courts will only take them.
In these posts, I can only briefly sketch the book’s argument, so I encourage readers to consult the relevant chapters for more detail. I designed the book so that the chapters are self-contained. You could read the introduction and the chapters on particular substantive areas without necessarily reading the rest.
With respect to the First Amendment, the book makes two main points. The first is that symmetry should support maintaining current doctrine’s focus on requiring neutrality in laws regulating free expression.
Modern First Amendment doctrine requires content-neutrality (or sometimes viewpoint-neutrality) in expressive regulation. As I noted in my first post, this case law offers a paradigm case of symmetry. By preventing the government from taking sides, it equally protects speakers of all sorts, no matter where they fall on the ideological spectrum. For that reason, moreover, it gives all sides of our divided polity a stake in maintaining the crucial civil liberty of free expression. Those disappointed by the immediate result in one case should recognize that the principle being applied may equally benefit them (or speakers they care about) in future cases.
The justices seem to recognize the virtues of this orientation towards neutrality. Indeed, this area of doctrine has remained a striking point of consens
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