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.
[1] 4 Marshall, Life of George
Washington 243 (Chelsea House 1983) (orig. ed. 1804-07).
[2] Hudson County Water Co. v. McCarter, 209 U.S. 349, 355
(1908).
[3] United States v. Rahimi, 602 U.S. 680 (2024). The specific quotations from the Chief
Justice’s opinion are from id. at 692, 690, and 691 respectively; from
Justice Barrett, id. at 739 (concurring opinion).
[4]
Youngstown Sheet &
Tube Co. v. Sawyer, 343 U.S. 579, 634 (1952)
(Jackson, J., concurring).