The Indian constitution was poised to create a new map of power, transforming the relationship between existing state agencies and new authorities. This chapter demonstrates how the individuals staffing the state apparatus were not mere spectators, passively following the constitution-making process, but actors who actively sought to influence, change, or resist the emerging constitutional order through both public and private channels. The success of the future constitution of India required a smooth transition of the organs of the colonial state to the postcolonial order. Turning their loyalty and ambitions to the new state and its constitutional order was not an obvious outcome in 1947. The chapter examines how provincial legislators sought to guard their autonomy; how the higher judiciary endeavoured to protect their judicial independence; the contested constitutional status of Delhi; and finally, how the ‘neutral’ bureaucracy who were managing the process of constitution making actively sought to defend their own jurisdiction and interests at the time. This process, which paralleled the integration of territories, led to the functional integration of the units of the state.

Joseph Story thought that the United States needed more than courts to vindicate its independence in the War of 1812. The youngest justice on the Supreme Court also believed that the nation needed legal doctrines that would support its aspirations to global power. For decades, American policymakers – and especially the Court under John Marshall – had defended the rights of neutral nations to trade peaceably in wartime. That approach made sense when a militarily weak but commercially vigorous United States sought to profit from trade with European powers embroiled in conflict. But now that the United States itself was at war, Story envisioned a different national future, in which a robust military and strong central government were the foundation of American sovereignty. The split that emerged on the Court over neutral and belligerent rights reflected a generational divide over how to preserve and extend American independence, and it fractured the Marshall Court’s prior unanimity. Despite Marshall’s resistance, Story persuaded his colleagues to adopt doctrines that favored the rights of nations at war, pushing the courts – and the country – to assume a more assertive presence at sea.

In a familiar pattern, federal judges ultimately embraced their role as the architects of American sovereignty on the water. As the Monroe administration redoubled its prosecutions of South American privateers, Congress left it to judges to define the legitimate boundaries of maritime violence. The Supreme Court responded by casting doubt on the claims to sovereignty advanced by revolutionary polities, and declaring that privateers were merely pirates, and therefore subject to punishment by all – including the United States. This judicial assertion of legal authority to police the waters of the revolutionary Atlantic was transformative. It helped secure approval of a treaty with Spain that paved the way for decades of territorial expansion in North America, and it presaged increasingly expansive American claims to hemispherical preeminence. Even when federal judges denied their own power to discipline a different category of “pirates” – those who engaged in the slave trade – they did so to uphold sovereign rights that Americans had been asserting since independence. If a nineteenth century American empire was ultimately realized on land, some of its first stirrings were at sea.

This chapter lays out the book’s central thesis that Supreme Court decisions changing previously prevailing interpretations of a mostly unaltered written Constitution represent the historical norm, not an exception. The chapter begins by discussing the death of Justice Antonin Scalia in February 2016 and the changes in constitutional doctrine that Scalia, who had pioneered the interpretive methodologies of originalism and textualism, had helped to bring about. The chapter also highlights changes that Scalia had urged but could not persuade a majority of his colleagues to adopt. It describes the political machinations by a Republican Senate majority in the aftermath of Scalia’s death and the similarly partisan maneuvers that resulted in the swift confirmation of a successor to the iconic liberal Justice Ruth Bader Ginsburg in 2020. Together, these developments helped produce the Court’s current supermajority of six conservative justices (out of nine), including three appointed by Donald Trump, and inaugurated a new era in constitutional history. After sketching this background, the chapter preliminarily sketches some of the book’s most important themes, including that the Supreme Court is a lawmaking institution but one that is constrained by widely shared understandings of the judicial role in ways that legislative lawmakers are not.

The Supreme Court has implemented a set of revolutionary changes in constitutional doctrine since the 1990s. It has developed a body of constitutional law that is rooted in a deep-seated mistrust of the People’s elected representatives. That body of law is one of several factors contributing to the problem of democratic decay in the United States. To reverse the process of democratic decay, the Court will need to repudiate much of the constitutional doctrine developed since World War II. In short, we need a Copernican revolution in constitutional law to revitalize popular control of the government. For far too long, the Court has placed itself at the center of our constitutional universe. Other actors in the system revolve around the Court, like planets revolving around the sun. To restore popular sovereignty and reverse the process of democratic decay, the Court must place We the People at the center of our constitutional universe, with other actors (including the Court) revolving around us.

In 2021, the Brazilian Supreme Court issued a landmark decision which declared that a portion of Section 40 of the Brazilian Patent and Trademark law violated the constitutionally enshrined right to health. The challenged provision automatically extended the terms of certain patents for up to ten years, a much longer period than permitted under any other patent regime in the world. It was adopted following lobbying from foreign pharmaceutical companies over the objections of local elites. The impugned provision qualified as an example of ultra-orthodoxy, defined here as the adoption of radically neo-liberal legal institutions in developing countries as a result of the lobbying efforts of industries with substantial economic power. The ruling by the Brazilian Supreme Court merely brought Brazilian law into line with the TRIPS agreement, the benchmark for legal orthodoxy. At the same time, the ruling was heterodox in several respects, including the interpretation of the right to health as a collective human right, the value given to independent academic opinions, and the attention paid to comparative law, particularly involving other countries from the Global South. It remains to be seen whether backlash against the decision will mute its potentially beneficial distributive effects.

Brazil and the United States adopted contrasting approaches to protection of tenants against eviction during the COVID-19 pandemic. In the United States, the legislature adopted protective measures for tenants early in the pandemic that were later overturned by the Supreme Court. In Brazil, the legislature failed to adopt significant protective measures during the early phases of the pandemic; the first important protective measure was an interim decision of Brazil’s Supreme Court handed down over one year after the beginning of the pandemic. In this sense, Brazil’s overall approach was heterodox while the approach in the United States was orthodox. At the same time, the actions of the Brazilian legislature and executive branch were highly orthodox, based on the argument that measures that served to protect tenants might harm vulnerable landlords. In fact, economically vulnerable tenants are likely to be much more common in Brazil than economically vulnerable landlords. This episode shows that a heterodox system may contain orthodox institutions that deny the distributional potential of private law. It also shows that a heterodox system may be less effective than an orthodox system at enforcing social rights.

Tribes continue to endure constraints on their sovereignty because relatively few people understand what a tribe is. For example, most people believe tribes are a racial minority with special privileges, when in reality, tribes are separate, sovereign governments. This stems from a lack of knowledge about tribal history. Schools do not teach Indian history; hence, people do not learn about the history of tribal governance and treaties. Learning about Indian history can enrich the school curriculum and help people understand why tribes exist. Additionally, great tribal leaders, such as Chief Standing Bear, can inspire students to fight for justice. At the very least, law students should be taught federal Indian law. Tribes are part of the United States constitutional order. They influenced its structure and were vital to its ratification. Plus, ignorance of Indian law’s history enables outmoded, colonial ideology to continue as the basis of contemporary federal Indian law. Knowledge of Indian law’s outmoded concepts will raise questions about the ethics of relying on nineteenth-century stereotypes to limit tribal sovereignty in the twenty-first century.

While the federal government has adopted a policy of tribal self-determination, paternalism remains. The Moapa Band of Paiute Indians’ attempt to open a brothel is a prime example. Prostitution is legal in the surrounding state of Nevada; nevertheless, the Secretary of the Interior prohibited the tribe from doing so despite acknowledging it “is a profitable economic enterprise for non-Indians.” Though the federal government was supposed to ensure the Navajo Nation received a fair return on its natural resources, the United States Secretary of the Interior assisted in a private company in swindling the Navajo Nation. Similarly, the United States mismanaged Indian assets for more than a century. When Eloise Cobell sued the United States, the United States removed a federal judge who was ruling in favor of the Indian plaintiffs. The case was settled soon after. Additionally, the National Labor Relations Board imposes regulations on tribes that it does not impose on other governments. The United States also prohibits tribes from accessing the bonds other governments use to fund infrastructure projects.

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 advocates an ethic of “symmetric interpretation” as a solution to the challenges outlined in Chapter 1. To prevent undue politicization of constitutional law, judges should favor, when possible, constitutional understandings that are “symmetric” in the sense of conferring valuable protections across both sides of the nation’s major political and ideological divides. By the same token, they should disfavor understandings that frame constitutional law as a matter of zero-sum competition between rival partisan visions. Favoring symmetric understandings in this sense will not always be possible. When it is possible, however, favoring symmetry may provide a point of common orientation for judges with differing policy preferences and interpretive outlooks. Reflecting this approach's inherent appeal, an inchoate preference for symmetry is already evident in judges’ opinions, oral argument questions, and reasoning.

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.