Symmetry and Substance

 
I am teaching a seminar this semester on Substantive Due Process. The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization compelled me to offer this class, as the rejection of reproductive rights as fundamental rights may very well signal the beginning of the end for the idea that unenumerated legal entitlements are hidden in due process clauses, and that a skilled jurist can discover and enforce them. My thinking has been that it would be good to be able to teach these materials now, before they become part of the Legal History curriculum.  

 
On the first day of class, I offered students a framework that could help them think through the nuances and complexities connected to an expansive reading of the 14^th Amendment that might acknowledge such rights. I told them that, as a relatively young  person in my late 40s, I am part of the first generation of Black Americans in this country’s nearly 250-year history who was born entirely free. Students looked puzzled, and a bit shocked.  Wasn’t freedom for Black Americans settled in 1865 with the 13^th Amendment?

 
Well, yes. But not completely. This became an entry point  for a discussion about the formal equality provided by the Reconstruction Amendments and enduring State sponsored barriers to freedom that persisted throughout much of the late 19^th and 20^th centuries, such as Black Codes and Jim Crow laws, not to mention the violence and intimidation used to maintain racial hierarchies.  These practices were not affirmatively dispelled until various civil rights laws were legislated in the 1960s. As Price notes, “[o]nly during and after the Civil Rights Movement’s mid-twentieth-century successes has the federal government, including the Supreme Court, sought to recover the Fourteenth Amendment’s promise and enforce meaningful protections against racial subordination.” (182)

 
We often think of this type of infringement on rights as part of the distant past – something that perhaps our great grandparents experienced but otherwise irrelevant to modern legal discussions. Yet, this dynamic is not only about race. Dobbs itself highlights the ongoing struggle for women to achieve reproductive autonomy, while sexual minorities, poor people, and others have interests that align with the freedoms professed by the 14^th Amendment that have not been achieved due to the belief that there is not a textual hook for their legal recognition.

 
This grounds a question that the seminar explores throughout the semester: how should judicial review engage with the documented problem of persistent substantive inequalities in light of law’s stated commitments to equality, largely understood as neutrality? For this conception of equality, enumeration is the touchstone; judges are thought to be able to only enforce those rights that appear in the Constitution. Judicial review as the possibility of discovering and enforcing unenumerated yet fundamental rights has been controversial to say the least. Yet it has been central to federal courts’ efforts at encouraging a more inclusive society.

 
Zachary Price’s Constitutional Symmetry  offers a broader theory of judicial review to help resolve these and other important debates. By proposing symmetry as an interpretive north star, Price suggests that judges should “craft constitutional understandings that may be mutually beneficial and thus (hopefully) mutually reinforcing across partisan and ideological divides, rather than one-sided and polarizing.” (2)

 
This is a bold and optimistic vision. At the heart of Price’s claim is that each part of the  partisanship divide represents one circle of a Venn diagram where there might be an ever so thin overlap in partisan sensibilities. Once identified, judges can craft rulings within this space that satisfy the ideals of both major political groups. Price deftly argues that this negotiated space may exist for even the most difficult political and legal areas, such as gun rights.  

 
Constitutional symmetry is an important concept that might allow courts to shift the focus of judicial review away from taking sides and towards finding common ground. Few would argue against the benefits of turning partisan temperatures down, so to speak, as part of an effort to find a space of collective agreement. But can symmetry apply to fundamental rights? Price believes so and says that “genuine symmetry in this area should require maintaining some general doctrinal formulation that avoids constitutionalizing one set of contested preferences at the expense of its rivals.” (211)

 
There seems to be a profound tension between the very idea of a fundamental right and symmetry as a normative guide to judicial review. If a right is to be framed as truly fundamental to citizenship – whether it be access to contraception, same sex marriage, or any other right that evokes appeals to substantive due process – must it not also be uncompromised? Declaring something to be fundamental yet limiting its full expression due to partisan disagreement hardly seems to respect the centrality of said right to people’s lives.

 
Rather, it subjects the enjoyment and expression of rights to the limitations of then-prevailing political winds. It might also  transform the judiciary – the branch of government that is to “say what the law is" – into a collection of mediators in robes with lifetime tenure. Prioritizing the resolution of political tensions might not align with a constitutional structure that positions federal courts as a co-equal branch of government and  is unlikely to meet the vision that Chief Justice John Marshall had in mind when he established judicial review in Marbury v. Madison.

 
I offer these perspectives precisely because we are currently in a political moment where partisan disputes that affect vulnerable populations are moving into unchartered waters. If constitutional symmetry is the goal, it is unclear how centering partisan appeals might shape broader judicial inquiries.

 
Take, for example, Representative Nancy Mace’s use of an anti-transgender slur during a House Committee hearing, and her stunning refusal to acknowledge the harm and depravity of this speech. Such language by a sitting Congressperson can anchor partisan divides on legal and political issues pertaining to sexual minorities and normalize less-than respectful treatment of vulnerable segments of the American population. Should this type of partisan speech and its attendant beliefs be part of the judicial calculus of symmetry in deciding cases relevant to transgender Americans?

 
Price’s formulation of constitutional symmetry would likely consider the use of slurs against a minority group reprehensible and  outside the bounds of judicial consideration. But to the extent that constitutional symmetry privileges partisan conciliation over uncompromised values such as justice for marginalized groups, it is hard to have confidence that this proposed approach can consistency identify which partisan ideals should not be considered and which political sensibilities merit deference. This latent instability embedded in pursuing the aesthetics of symmetry over the substance of justice may expose minority groups to harms that could rollback many of the gains in civil rights and constitutional interpretation that have been achieved over the past few decades.

 
At some point, certain political positions are just wrong and incompatible with our legal commitments. Constitutional Symmetry is an admirable attempt at deciding politically charged cases by finding a middle ground that can allow most Americans to support our democratic institutions.  But symmetry itself as a guiding norm may very well need guardrails to prevent insidious ideas from being mistaken as legitimate party preferences that should be deferred to. I look forward to future work by Price that continues this conversation and further develops his promising idea.

 
Osagie K. Obasogie is the Haas Distinguished Chair and Professor of Law at the University of California, Berkeley with a joint appointment in the Joint Medical Program and School of Public Health.