//  10/30/18  //  Commentary

Whatever one thinks of the outcome, the bitter fight over Justice Kavanaugh’s confirmation reflected (and likely exacerbated) the central political dynamic of our time:  increasing political polarization and negative partisanship.  This political environment poses severe challenges for our constitutional system.  While negative partisanship seems likely to generate increasingly intense inter-branch and federal-state conflict, it also risks destroying the consensus about constitutional ground rules that peaceably resolving such conflicts requires. 

In this post, I will offer some thoughts about how courts should navigate this fraught environment.  I will advocate a principle of “symmetric constitutionalism” (developed at greater length in this draft essay) that I believe should inform judicial resolution of constitutional disputes in our polarized era.  In a future post, I hope to offer some thoughts about constitutional law outside of courts.

Just as Americans are increasingly dividing into two partisan camps over policy, they also appear ever more polarized about constitutional questions.  Generalizing greatly, progressives today typically embrace a constitutional vision centered on advancing social justice, protecting privacy rights, and enabling expert administrative governance (among other things).  Conservatives, in contrast, increasingly focus on protecting historic understandings of individual rights (including gun rights and religious freedom), leaving moral questions to the political process, and restoring a traditional view of separation of powers.  At the same time, in any given dispute, getting a “win” for some substantive outcome tends to overwhelm any commitment to principled consistency.

This political environment poses challenges for both constitutional law and judicial authority.  However they rule in a given case, courts risk being perceived as political rather than impartial—a problem seriously exacerbated by the divisive fight over Kavanaugh.  Yet judicial authority depends on public confidence that courts are engaged in legal interpretation rather than pure policy-making.  What is more, if our politics continue to grow more brutal and conflictual, courts’ capacity to credibly resolve conflicts between branches, between states and the federal government, or over basic principles of civil liberty, may be quite important to governmental stability. 

As explained at greater length in my essay, I believe this polarized environment calls for a judicial ethos I call “symmetric constitutionalism.”  This ethos entails favoring, when possible, constitutional understandings that protect the interests of people on different sides of the ideological spectrum.  It seeks, in other words, to spread out constitutional law’s benefits, giving both major partisan camps a stake in preserving the system and encouraging partisans on each side to view others’ freedom as a reflection of their own.

What sorts of understandings would symmetric constitutionalism favor?  To begin with a straightforward example, the Supreme Court has long understood the First Amendment’s guarantee of free speech to require “content-neutrality” when the government regulates expression of ideas.  This understanding is paradigmatically symmetric.  It ensures that whatever viewpoint or topic a speaker addresses, and thus wherever the speaker falls on the political spectrum, their expression is equally protected from censorship.

By contrast, the Supreme Court’s recent decisions interpreting the Second Amendment to protect an individual right to bear arms are paradigmatically asymmetric.  They accord strongly with one partisan coalition’s policy goals and are sharply at odds with the other’s.  Of course, these decisions might nonetheless be correct; a principled interpretive theory will not always yield symmetric results.  Even if they are correct, however, these decisions’ political one-sidedness risks promoting cynicism about courts’ authority and impartiality.  Symmetry might therefore provide a reason to favor moderating Second Amendment rights’ scope.

Symmetric constitutionalism may also sometimes support deciding particular cases based on one rationale rather than another.  The Supreme Court’s decision last term in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission is a useful example.  In Masterpiece Cakeshop, a Christian baker who objected on religious grounds to same-sex marriage refused to create a custom cake for a same-sex wedding.  State authorities sanctioned him for violating state anti-discrimination laws, but the Supreme Court held that the state violated the baker’s constitutional religious freedom by basing its decision on impermissible animus towards his religion.

Masterpiece Cakeshop involved just the sort of conflict between competing constitutional values that increasingly animates our politics.  From that point of view, the decision might be understood as a conservative “win” offsetting the earlier progressive “win” guaranteeing same-sex marriage in Obergefell v. Hodges.  Obergefell itself, moreover, might have been more symmetric had it framed its holding as a protection against government compelling any one private understanding of marriage, rather than as a right to same-sex marriage per se.

In any event, as compared to the Court’s narrow free-exercise holding, a broader free-speech rationale could have provided a more symmetric, less divisive basis for the Court’s result in Masterpiece Cakeshop.  The Court could have held that the First Amendment bars the state from compelling those who provide creative services from expressing viewpoints they do not share.  Here, the baker’s viewpoint was conservative, but across the universe of other such casesdressmakers refusing to make Melania Trump’s inauguration gown, or political consultants working only for candidates they support—the principle’s benefits would be bipartisan.

When it comes to structural constitutional questions (questions about federal-state authority or separation of powers), symmetric constitutionalism should favor articulating and reinforcing basic rules whose partisan valence will vary across different cases.  The so-called “anti-commandeering” doctrine is a good example.  This doctrine protects states against being compelled to enforce or administer federal laws.  In the past, this doctrine shielded conservative state and local officials from federal mandates to administer federal firearms restrictions or the expanded Medicaid program under Obamacare, but today it protects progressive states and localities from mandated cooperation in federal immigration enforcement.

In this era of partisan distrust, constitutional law can provide a stable basis for governing our large and diverse polity only if both major partisan camps accept its validity.  Though a preference for symmetry need not always be decisive (and one might reject symmetric outcomes in my examples here for any number of reasons), favoring symmetric constitutional understandings when possible might help reinforce shared commitments and defuse partisan conflicts over constitutional meaning.  Courts and commentators alike should keep this goal in mind as they navigate the legal battles ahead.


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