This chapter addresses symmetry’s implications for gun rights and unenumerated fundamental liberties. Although recognizing an individual right to bear arms is inevitably asymmetric given current divides over gun regulation, the Supreme Court might moderate its decisions’ asymmetry in two ways: by allowing some meaningful room for firearms regulation, and by ensuring that the Second Amendment sometimes interferes with laws that are conventionally favored more by conservatives than by progressives. With respect to unenumerated rights, symmetry should support embracing some method for identifying such rights that avoids any predictable skew toward rights favored by one or the other major partisan or ideological camp. The Court’s current method of looking to “history and tradition” to define unenumerated rights could satisfy this standard, provided the Court applies it in a manner that allows recognition of new rights based on enactment of new laws over time in jurisdictions across the United States. In addition, the existing constitutional protection for parental rights, meaning parents’ authority to control key aspects of their children’s upbringing, appears not only defensible under the Court’s “history and tradition” approach but also symmetric given major current divides over certain parenting choices.

This chapter explores symmetry’s implications for equal protection jurisprudence. A stark political divide has emerged between two understandings of legal equality, particularly with respect to race: conservatives generally favor an “anti-classification” approach focused on ensuring government neutrality, while progressives typically favor an “anti-subordination” approach that allows affirmative governmental action to redress historical group disadvantages. Although the Supreme Court has increasingly aligned its jurisprudence with the anti-classification perspective, symmetry should encourage an approach that gives something to both sides. The Court might accomplish this goal in at least three ways: by returning to the focus on diversity reflected in its earlier decision in Regents of the University of California v. Bakke while giving this framework greater “bite”; by allowing majority groups to disadvantage themselves, so long as they are genuinely dominant at the relevant level of government; and by sometimes allowing selection of government criteria with a view to their demographic effects, so long as these criteria are themselves facially neutral.

Chapter 3 focuses on Anna E. Dickinson, a little-read but in her time central abolitionist and antiracist activist, lecturer, and novelist. A riveting speaker who was a major voice for Radical Republicans, Dickinson toured the country addressing mixed-gender audiences on abolition, women’s suffrage, the right for unions to organize, and antiracism. Dickinson’s first novel, What Answer? (1868), follows an interracial couple, William Surrey and Francesca Ercildoune, from their first meeting in 1861 to their deaths in 1863 at the hands of a New York Draft Riot mob. It ends with a climactic scene in which Francesca’s brother, Robert Ercildoune, accompanied by a white friend. attempts to vote in a local 1865 election and is barred by racist poll-goers. The novel takes on issues raised by the debates around the passage of the Fourteenth Amendment that were raging while Dickinson was writing What Answer? Both the Amendment and the novel take as their central theme Black citizenship, without which the losses of the Civil War, represented by the many amputee characters in the book, would have been in vain.

Reynolds v. McNichols is a 1973 opinion from the Tenth Circuit Court of Appeals. Although the plaintiff was never convicted of prostitution or diagosed with an infection, she was held, examined, and involuntarily treated for sexually transmitted infections under the city of Denver’s “hold and treat” ordinance. The Tenth Circuit rejected her due process and equal protection challenges to the ordinance. In her feminist rewrite, Professor Wendy Parmet questions the health officials’ assumptions that female sex workers are “the primary source of venereal disease” and that the city can only protect the public’s health by forcibly treating them. She holds that the application of the ordinance to the plaintiff was discriminatory and that, under the circumstances, the defendants’ forced treatment of the plaintiff violated her right to privacy and their failure to obtain a warrant before forcing her to submit to a medical examination or remain in detention constituted an unreasonable search. In her commentary, Professor Aziza Ahmed situates the case in terms of historical responses to sex work under the banner of public health.

The Roberts Court has erected nearly insurmountable burdens of proof under Title VII and the Fourteenth Amendment.

In this chapter, Sanford Levinson examines the practice and implication of appending amendments to the end of the Constitution and inquires how many times the Constitution has amended. The presumptively correct answer number of amendments, at present, is twenty-seven, but those are only textual amendments to the Constitution. “How many times has the United States Constitution been amended” generates what Wittgenstein well described as “mental cramps.” His own belief was that one could cure these cramps by dissolving many traditional questions of philosophy. We could do the same if we adopted a truly minimalist understanding of “constitutionalism” that allowed, for example, anyone designated as the Ruler to rule by absolute discretion. One might proffer this as a variant of Hobbesian constitutionalism, whereby the sovereign people, realizing that nothing else can in fact guarantee them the security they yearn for, delegate their powers to an all-powerful Leviathan. An alternative is what has come to be identified as “liberal constitutionalism,” with the attached meaning of governments that are established through institutions created (and limited) by the constitution itself.

Reconstruction legislators faced the uncomfortable yet broadly acknowledged fact that the U.S. Constitution had countenanced slavery. The Fourteenth Amendment set out to guarantee and secure civil freedom through the reassertion of the U.S. Constitution, yet its expansive possibilities proved short-lived. Anti-Chinese ideologues and nativists challenged birthright citizenship and advanced new legislation restricting legal entry into the United States. The 1882 Chinese Exclusion Act, the nation’s first raced immigration and naturalization ban, helped stabilize the meaning and value of citizenship as the federal judiciary began narrowing the scope of the Fourteenth Amendment. By the end of the century, the Chinese Exclusion Acts and federal rulings on Chinese immigration cases completed the redefinition of the Asiatic as the categorically excluded. Among the earliest Asian American writers to publish in English, Wong Chin Foo and Edith Maude Eaton (Sui Sin Far) produced a wide-ranging body of journalism and short fiction that addressed public anxieties over “contraband Chinese.” The criminalized “illegal immigrant” remains a ready foil for the citizen, shoring up fantasies of national belonging as our civil liberties face increasing erosion. The writers discussed in this chapter offer us a unique vantage on this conflicted and evolving history of U.S. citizenship.

I have recently retired from the United States Supreme Court. It’s true that as a justice, I had life tenure, but I wanted time to reflect on the cases I had decided during my long career on the bench. And, so I am sorting through old notes, correspondence, drafts, and opinions to make sense of my jurisprudential legacy, such as it is. The process has made me feel a bit like Jorge Luis Borges in “The Other,” when as an old man, he unexpectedly meets a younger version of himself. The elder Borges realizes that the distance between him and his youthful doppelganger is not just chronological but psychological and philosophical – and, more importantly, utterly unbridgeable. Jorge Luis Borges, The Book of Sand 11 (1977). As I sift through my records, I have similar encounters with myself as a fledgling jurist. I was confident then that I had done everything possible to achieve just results in every case. Now, I look back and realize that I made some irretrievable mistakes, though all in good faith. They are oversights that I am able to appreciate only in hindsight, though that does not mean I feel any less regret.

Petitioner, Homer Plessy, asserts that the Separate Car Act violates the Thirteenth and Fourteenth Amendments to the U.S. Constitution. Because we conclude that the Act instantiates and bolsters White supremacy,3 it cannot be sustained. As context is important to understanding the Act’s intended effects and this Court’s conclusion, we begin with history.

Argued December 13, 1971.Reargued October 11, 1972.Decided January 22, 1973.

Justice MURRAY, concurring in the judgment.1

Since 1854, Texas, like many other American jurisdictions, has made it a crime to procure or attempt to procure an abortion, except with respect to “an abortion procured or attempted by medical advice for the purpose of saving the life of the mother.” Tex. Penal Code Arts. 1191–94, 1196 (1961). Petitioner Jane Roe is an unmarried woman living in Dallas County, Texas. She alleges that, unmarried and pregnant, she sought to terminate her pregnancy by an abortion “performed by a competent, licensed physician, under safe, clinical conditions.” She was unable to secure a “legal” abortion in Texas because her life did not appear to be threatened by the continuation of her pregnancy. Lacking the resources to travel to another jurisdiction to secure a legal abortion under safe conditions, she was forced to continue her pregnancy.

I dissent today from the majority’s decision in these cases because the detestable segregation in the public schools that the majority finds unconstitutional is a manifestation of the evil of racism the depths and pervasiveness of which this Court fails even to acknowledge, much less address and attempt to correct.

Argued January 15, 1908.Decided February 24, 1908.

Justice Khiara M. BRIDGES delivered the opinion of the Court.

Submitted Oct. 12, 1927.Decided Nov. 21, 1927.

Chief Justice REGINALD OH delivered the opinion of the Court.

Mr. Chief Justice STONE1 delivered the opinion of the Court.

The petitioner, Fred Korematsu, was born in Alameda County, California, and is of Japanese ancestry. He is an American citizen by birth. United States v. Wong Kim Ark, 169 U.S. 649 (1889). That his parents were born in Japan and, with the commencement of war, became formally classified as enemy aliens is of no moment in this case.2 No question has been raised as to petitioner’s loyalty to the United States.

Petitioner was convicted in a federal district court for remaining in San Leandro, California, a “military area,” contrary to Civilian Exclusion Order No. 34 of the Commanding General of the Western Command, U.S. Army, which directed that after May 9, 1942, all persons of Japanese ancestry should be excluded from that area.

Argued December 4, 2006.Decided June 28, 2007.

Justice Charles LAWRENCE delivered the opinion of the Court.1

Plaintiffs Parents Involved in Community Schools (“Plaintiffs”) brought suit against Seattle School District No. 1 (“Defendant”); challenging an assignment plan that relied in part on racial “tiebreakers” to assign slots in oversubscribed high schools. In a separate action, McFarland v. Jefferson County Public Schools, parent and student plaintiffs challenged a school district’s race-conscious student assignment plan. In the Seattle case, the District Court granted the school district summary judgment, finding, inter alia, that its plan survived strict scrutiny on the federal constitutional claim because it was narrowly tailored to serve a compelling government interest. The Ninth Circuit affirmed. In the Jefferson County case, the District Court found that the school district had asserted a compelling interest in maintaining racially diverse schools, and that its plan was, in all relevant respects, narrowly tailored to serve that interest. The Sixth Circuit affirmed.

These cases are brought here by writs of error to the Supreme Court of the State of Louisiana. They arise out of the efforts of the butchers of New Orleans to resist the Crescent City Live-Stock Landing and Slaughter-House Company in the exercise of certain powers conferred by the charter which created it, and which was granted by the legislature of that state.

Argued January 15, 1974.Decided June 24, 1974.

Justice NELSON delivered the opinion of the Court.1

This case addresses whether it is constitutional to deny the right to vote based on a citizen’s past criminal conviction. For the reasons stated below, we hold that California’s composite legal scheme that denies voting rights to persons who have fully discharged their sentences of incarceration or parole violates both the letter and the spirit of the Fourteenth Amendment.

Argued March 26, 2003.Decided June 26, 2003.

Justice ROBINSON delivered the opinion of the Court.***

This case requires us to decide whether Texas may criminalize consensual intimate sexual behavior between two men. We apply intermediate scrutiny under the Equal Protection Clause because the Texas law uses a person’s sex to determine the scope of his sexual liberty. Texas has fallen far short of establishing the requisite “exceedingly persuasive justification” to justify this incursion on personal liberty. See, e.g., United States v. Virginia 518 U.S. 515 (1996).