Zach Price on Symmetric Constitutionalism

Published on: Author: Rory Little

Professor Zach Price, my UC Hastings Law colleague and a recognized star of U.S. constitutional theory, has recently published an essay entitled “Symmetric Constitutionalism: An Essay on Masterpiece Cakeshop and the post-Kennedy Supreme Court.” This essay proposes “symmetric constitutionalism” as a method for judges to use when deciding hard cases. His idea has drawn attention, and for good reason. The essay is a substantial contribution to the ongoing conversation regarding constitutional law in a time of great polarization and re-examination. Professor Price’s catchy description—“symmetric constitutionalism”—should become a standard in future doctrinal discussions.

Professor Price’s essay is published in a fantastic symposium issue of the Hastings Law Journal devoted to the jurisprudence of recently-retired Justice Anthony Kennedy. His is the best of many impressive papers there. His idea of “symmetric constitutionalism”—fleshed out a greater length in the essay of course—is (and I paraphrase) that when a choice of constitutional analyses or arguments is available, judges should aspire to rest their conclusions on “cross-partisan” positions that do not require broad “all-or-nothing” results for increasingly polarized viewpoints. That is, when judges have doctrinal discretion in deciding difficult constitutional issues, they should work to find a doctrinal path or a rationale for decision that “gives something to both sides.” “[R]ather than mortgage their credibility to advance” one side’s ideological goals, judges should choose constitutional doctrines and language that include general non-ideological principles or premises, which each “side” might later find to their benefit or satisfaction even if they lose the particular case at hand. Reminiscent of Herbert Wechsler’s aspiration to employ “neutral principles” for constitutional analysis, Professor Price’s essay sounds a much-needed note of mature, calming, and principled constitutional advice. To support his well-developed idea, Professor Price discusses a “long tradition of civic republicanism” that gives life to support his approach. He also provides recent concrete examples of good “symmetric” constitutional decisionmaking, as well as asymmetric, unhealthy, writing.

This brief post cannot adequately describe the captivating nature of Professor Price’s writing, let alone the comprehensiveness of his compelling analysis. He provides a remarkably concise, yet wide-ranging, survey of constitutional doctrines to illustrate “symmetric constitutionalism” (which he defines as “a conscious tilt toward outcomes, doctrines and rationales that distribute constitutional law’s benefits across ideological divisions”). Professor Price posits that such an ameliorative approach is not only healthier than one-sided ideological bulldozing but also “necessary in this era of partisan polarization and distrust.” The “moderating influences” of the theory, he hopes, can calm the waters of high-intensity controversies and provide soothing doctrinal safe-harbors for future constitutional debate. Indeed, Professor Prices suggests that his non-partisan symmetric approach might beneficially be employed by all participants in our constitutional conversation: lawyers, litigants, legal academics, judges, and even politicians.

Professor Price provides “deep” analysis at the level of political theory as well as constitutional doctrine. Yet his thinking is made easily accessible for everyday court-watchers by a discussion of recent, specific, examples. Analyzing four decisions from Justice Kennedy’s final Term (2017-18), Professor Price concludes that the Supreme Court’s justices (at least some of them) may be “stumbling” toward a recognition of the value of a symmetric constitutional approach. In the much-publicized Masterpiece Cakeshop decision, for example, he points out that Justice Kennedy “highlighted the importance of both gay rights and religious freedom,” thus providing some solace even to the losers of the particular dispute. This is good “symmetric” writing. However, Professor Price faults the Court in Masterpiece for ultimately choosing a more divisive theory than necessary for resolving the case. There is room for improvement, Professor Price suggests, but first the Court must explicitly recognize the possibility, and benefits, of non-partisan “symmetric” analysis.

Professor Price’s essay speaks with a deep historical and theoretical voice, and is general enough to have long-lasting impact. He urges judges to “attend to the better angels of their nature,” for the sake of a stable and doctrinally accommodating future. Constitutionally, our polity today stands at the edge of sharp ideological cliffs. Professor Price proposes a sensible, if not always easily identifiable, path for backing away from the fatal divide. Don’t just absorb Professor Price’s excellent essay; send a copy of it to every federal judge you can.