Symmetry and Constitutional Adjudication

Guest Blogger

For the Balkinization symposium on Zachary Price, Constitutional Symmetry: Judging in a Divided Republic (Cambridge University Press, 2024). 

H. Jefferson Powell

That the hyperpolarization of American politics poses serious problems for American constitutional law is undeniable.  No one argues that constitutional law – and the judges who administer its central mode of enforcement – should be partisan in a crude or conscious sense, the tool of either liberal or conservative political causes.  But with depressing regularity, the results of constitutional adjudication seem to map neatly onto the political preferences of judges, most prominently those of the justices of the United States Supreme Court.  It’s natural to respond by asking or demanding that the judges avoid or ignore the political divisions that separate the rest of us. 

In his bold, fascinating new book Constitutional Symmetry: Judging in a Divided Republic, Zachary S. Price offers the startling suggestion that the courts address the problems posed by political polarization by embracing it.  Rather than pretending that constitutional decisions have no political salience that tracks the Republic’s overtly partisan disagreements, Professor Price argues that judges should take account of those disagreements by crafting rules of constitutional law that confer benefits on both sides of the liberal/conservative chasm, not as a matter of outcomes (“yesterday we gave the Democrats a victory, today’s decision has to reward the GOP”) but of articulating and acting on principles that offer equivalent protections to both sides.

Constitutional Symmetry is remarkably thorough in explaining why its thesis is legitimate, in anticipating objections and distinguishing Professor Price’s proposal from sham versions of political evenhandedness, and in acknowledging its limitations.  The extent to which the book will ultimately influence the practices of constitutional law and adjudication remains to be seen, but I think it is already possible to credit Price with one important accomplishment:  he has introduced into the discussion a welcome candor about the presence of political concern and commitment in the judgments of even the most conscientious constitutional decisionmaker.  This is no new discovery – over two centuries ago John Marshall noted that “a contrariety of opinion on [a] great constitutional question ought to excite no surprise” because constitutional “judgment is so much influenced by the wishes, the affections, and the general theories of those by whom any” such issue must be decided.[1]  But Price’s book demonstrates the value of recognizing that any claim there are no “Obama judges or Trump judges, Bush judges or Clinton judges” is a misleading fiction. 

To appreciate Constitutional Symmetry’s importance demands a careful reading of the book itself.  I want to offer a brief addition to Professor Price’s argument for the legitimacy of his proposal, a supportive example from the Supreme Court’s last term, and a suggestion.

As I noted above, Professor Price is fully aware of the objection that his thesis boils down to the suggestion that judges simply split the difference in constitutional cases between warring American political and ideological camps.  Inscribing such a practice into constitutional law would delegitimate the work of the courts almost as surely as one-sided partisanship, and Price successfully distinguishes his idea of constitutional symmetry from it.  Part of the distinction he draws lies in his claim that the Constitution protects interests and values that American partisan and political argument divides between liberals and conservatives.  The Constitution is both/and rather than either/or on many issues, and constitutional adjudication therefore can regularly, legitimately protect both liberal and conservative commitments.  The minor addition I propose to Price’s legitimacy argument is to note that the idea of constitutional symmetry instantiates the broader understanding of law that Justice Holmes asserted long ago.[2] 

All rights tend to declare themselves absolute to their logical extreme. Yet all in fact are limited by the neighborhood of principles of policy which are other than those on which the particular right is founded, and which become strong enough to hold their own when a certain point is reached. The limits set to property by other public interests present themselves as a branch of what is called the police power of the state. The boundary at which the conflicting interests balance cannot be determined by any general formula in advance, but points in the line, or helping to establish it, are fixed by decisions that this or that concrete case falls on the nearer or farther side. For instance, the police power may limit the height of buildings in a city, without compensation. To that extent it cuts down what otherwise would be the rights of property. But if it should attempt to limit the height so far as to make an ordinary building lot wholly useless, the rights of property would prevail over the other public interest, and the police power would fail.

A central function of adjudication is to determine the boundary between legitimate but conflicting legal interests, in constitutional law as elsewhere. 

My supportive example from the current Supreme Court is United States v. Rahimi, decided in June 2024, which upheld the constitutionality of the federal ban on possessing a firearm while subject to a domestic violence restraining order.  Chief Justice Roberts’s opinion of the Court claimed to apply the history-and-tradition approach to analyzing firearms regulations under the second amendment that an earlier decision, Bruen, had announced, over the dissent of Justice Thomas, who wrote the Court’s opinion in Bruen:  their disagreement over just what Bruen instructs embodies, respectively, a concern for constitutional symmetry and a fairly clear disregard for its value. 

According to Roberts, what Bruen requires is that the challenged law “comport with the principles underlying the Second Amendment, but it need not be a ‘dead ringer’ or a ‘historical twin’” to a firearms regulation that existed before or at the time of the second amendment regulation.  Because pre-existing English and American law included surety laws that authorized civil orders directed to persons who posed a threat of domestic violence, and criminal “going armed” laws permitting the prosecution of those who used guns in public to terrorize others, Roberts concluded that the federal provision “fits comfortably within this tradition” of regulations limiting the right to bear arms.  In contrast, Thomas found neither set of laws analogous to the federal law:  the surety laws did not in fact take away the individual’s firearm, and the going armed laws were aimed at public not domestic misbehavior.  For Thomas, only a pre-amendment regulation that was closely comparable in both its justification and the burden it placed on firearms possession would have sufficed:  the inquiry is not into “principles” but into historical specifics.

As Chief Justice Roberts commented, his view of Bruen and the second amendment does not leave firearms “law trapped in amber,” which is precisely the virtue Justice Thomas sees in his approach.  The different consequences of adopting their warring positions are clear.  Roberts’s principles inquiry allows for conclusions for and against particular firearms regulations in a broadly symmetrical fashion – Bruen struck down a licensing statute while Rahimi upheld a time-limited prohibition.  Thomas’s search for a closely parallel historical equivalent, in contrast, “forces 21st-century regulations to follow late-18th-century policy choices” (as Justice Barrett wrote in a concurrence), and predictably would lead to the invalidation of a much broader range of firearms regulations.  Roberts’s rule protects the interests of both sides in our societal debates over guns; Thomas’s would not.  The fact that Roberts, not Thomas, wrote for the Court supports Professor Price’s claim that his thesis develops what is already an inchoate legal practice.[3]

          Finally, I suggest that the approach to constitutional adjudication proposed in Constitutional Symmetry ought to take a somewhat different form when the issue before the court involves claims about presidential authority in the areas of foreign affairs and national defense.  Unlike debate in many other areas of constitutional law, disagreement over the president’s unilateral power to act in those spheres, and particularly to order the use of military force, does not track very closely the usual partisan and ideological divide.  Debate over the provision of aid to Ukraine is a case in point.  But it would be a mistake to assume therefore that Professor Price’s concept of symmetry can’t be helpful. 

The judicial tendency is to avoid “interference” in these spheres, which in practice almost always gives the president a green light.  However, just as with issues involving, for example, federalism and the administrative state, where the Constitution is best understood to protect interests on both sides of the liberal/conservative split, so in foreign affairs and national defense the Constitution embodies interests that are in tension even if our current ideological groupings do not line up very neatly with those competing interests. Text, historical practice, and prudential concerns certainly indicate the need for “energy in the executive” in the protection of the Republic and furthering its interests in the international arena.  But a judge who must adjudicate a constitutional issue involving unilateral presidential action in a matter involving international relations or military action will serve the Constitution better if she searches for a rule that protects Congress’s role in those matters, and not simply the president’s.  And doing so may require judicial intervention more often than courts have been willing to contemplate if the Constitution’s own symmetry, “the balanced power structure of our Republic,” is to be maintained.[4] 

H. Jefferson Powell is a professor of law at Duke University. You can reach him by e-mail at Powell@law.duke.edu.