Constitutional Interpretation

Zachary Price | 11.27.2024 1:38 PM

My last post offered examples of areas where symmetry could help guide future doctrinal development. This final post on my book addresses three of the most fraught areas of constitutional law: equal protection, fundamental rights, and the law of democracy. In all these areas, as in the others I already addressed, highlighting symmetric possibilities makes clear that framing constitutional debates in maximally rivalrous terms is a choice; less polarizing options are available too.

Regarding equal protection, questions of group identity and legal equality are obviously a major point of ideological division in the contemporary United States. The conservative constitutional vision understands the Fourteenth Amendment's Equal Protection Clause to require a strict "colorblind" focus on individual characteristics rather than group identities. By contrast, the progressive vision interprets the same guarantee to allow, or perhaps even require, governmental privileging today of groups who suffered discrimination and disadvantage in the past.

Even as the divide between these perspectives has grown more acute in American society, the Supreme Court has aligned itself more squarely with the conservative vision. It thus held in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (SFFA) in 2023 that racial preferences in higher education are unconstitutional.

The Court could mitigate this asymmetry in at least three ways going forward. One would be to restore what I call "Bakke with bite": the Court could hold, much as it did in earlier cases such as Regents of the University of California v. Bakke and Grutter v. Bollinger, but with greater rigor, that public universities and other government programs may pursue "diversity" so long as they do so in an individualized rather than mechanical fashion. A second option, which I call "counter-majoritarian majoritarianism," would follow John Hart Ely........

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