This chapter examines the constitutional role of parties and partisanship. We begin by sketching a conception of constitutionalism as a mechanism for finding an equilibrium between different social interests. Appealing as this ideal of moderation has long been for many, we highlight its limits as a basis for democracy and progressive change. A desirable constitutional model must make space for political conflict and immoderation, and as we go on to argue, partisans and the associations they form are an important foundation for this. The final section connects these observations to the contemporary political world, in particular to the state of parties today and to some of the misplaced anxieties about ‘polarisation’ they give rise to.

Chapter 5 is comparative in nature and explores the enactment of legislation in two federal polities, namely the United States and Germany. The objective of this chapter is to highlight that while national legislative processes are dominated by party politics, the European legislative process is dominated by trilogues – to some extent, trilogues make up for the absence of a genuine party system at EU level. It is within and between political parties and trilogues, respectively, that positions are discussed, coalitions cemented, institutional interdependences managed, political differences solved, and compromise brokered. When legislative files eventually reach the floor of the competent legislative institutions, their fate is – most of the time – already sealed. This chapter aims at highlighting that leaving legislative and interchamber coordination to party structures is no more – and possibly less – democratically accountable than entrusting it to trilogues, especially in times of strong partisanship and grand coalitions.

While schema theory motivated the original measures of automatic cognitive associations between constructs in memory, researchers soon modified these to explore a different domain: implicit attitudes about social groups that elude standard self-reports. As the so-called implicit attitude revolution gained steam, the original measurement goal got much less attention, especially in political science. We believe the schema concept – automatic cognitive associations between features of an attitude object – continues to hold great value for political psychology. We offer a retrofit of the popular implicit association test (IAT), one more efficient than many lexical tasks, to tap these associations in surveys. The new technique captures the degree to which citizens link ideas about ostensibly group-neutral policies to specific social categories. We use this measurement strategy to explore the psychological mechanisms underlying group centrism in politics, an effort that has been largely abandoned due to measurement difficulties. Results from four studies offer practical suggestions about the application of implicit measures for capturing the automatic ways people link groups to important political objects. We conclude by discussing the broader promise of implicit measurement of group schemas, not just implicit affect, for political psychology.

This chapter summarizes the book’s main argument and places it in the broader context of the literatures on party building, electoral mobilization, and partisanship. It outlines the book’s broad theoretical approach that combines insights from social psychology (in particular, drawing on social identity and self-categorization theory) with a historical institutionalist framework.

This chapter explores symmetry’s implications for the law of democracy. Symmetry has obvious relevance in this area, given the centrality of election-related disputes to maintaining courts’ political neutrality. At a minimum, symmetric interpretation should encourage the Supreme Court to ensure greater consistency in its emergency orders blocking legal changes before an election. In addition, symmetry may help justify the Court’s controversial decisions leaving both partisan gerrymanders and choices about overall districting procedures to the political process. In combination, if not in isolation, these rulings are symmetric because they avoid constitutionalizing one position or the other on politically charged questions about appropriate criteria for districting. Finally, symmetry should support closer scrutiny of voting rules and procedures with skewed partisan effects, provided that challengers can convincingly establish a meaningful impairment of political competition.

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 refines the concept of constitutional symmetry and anticipates some potential objections. Contrary to what skeptics might assert, judges can reliably assess whether particular constitutional understandings are symmetric or not. In addition, favoring symmetry is valuable even though political alignments may shift in the future, and arguable asymmetries in the Constitution itself are not a reason to disfavor symmetric interpretations of provisions whose meaning is debatable. Symmetric interpretation also addresses contemporary challenges better than competing proposals to embrace “proportionality” in rights adjudication, give greater weight to existing precedent, or pursue one contemporary constitutional vision or another in no-holds-barred fashion. For judges who embrace an ethic of symmetric interpretation, a preference for symmetry should hold the greatest purchase in crafting general understandings of discrete constitutional provisions rather than overall interpretive theories or case-specific results, and judges should favor symmetric understandings even if their colleagues do not.

This chapter outlines the challenges that current political polarization presents for constitutional law and judicial authority. Over the past fifty years, US politics have polarized, producing close political competition between two ideologically defined national parties that view each other with fear and distrust. This polarization has encouraged political actors in Congress and the federal executive branch to take legally aggressive positions and prioritize substantive policy achievements over adherence to good-governance norms or even constitutional restraints. At the same time, polarization has generated rival constitutional visions, and aligned slates of judges, that aim to advance partisan goals through constitutional interpretation. This environment poses risks for both judicial authority and constitutional law, because the public may lose trust in courts as neutral arbiters of constitutional disputes if it perceives them as wholly political institutions.

This chapter advances theoretical reasons to support symmetric interpretation. First, favoring symmetry accords with the Constitution’s character as a comparatively terse, “framework” document focused on establishing democratic procedures rather than definitive policies. Second, an ethic of symmetric interpretation accords with widely accepted features of judicial role-morality. Finally, symmetric interpretation accords with the framers’ own constitutional aspirations and interpretive methods. Multiple widely accepted theoretical considerations in constitutional law thus support preferring symmetric understandings when possible.

Originally established by “we the people,” as its preamble majestically states, the Constitution belongs to us all. But Americans increasingly treat it as the property of one political faction or the other. In keeping with their own preferences, conservatives interpret the Constitution to protect religion, limit gun control, and obstruct administrative governance while allowing state-level regulation of moral questions like abortion. Progressives see a mirror-image constitution that advances social justice, confers broad federal power, and allows flexible administrative regulation while at the same time limiting state and local police authority and guaranteeing sexual and reproductive autonomy. As national politics have grown ever more divided and polarized, preventing either side from implementing its goals through federal legislation, both coalitions have dreamed of capturing the courts and implementing their vision instead through constitutional interpretation. A document that should be a source of unity and shared commitments has become a vehicle for extending political conflict.