Ron Carey has posted A Unified Theory of Asymmetric Constitutional Interpretation: Why the Supreme Court Defers to Institutional Power – and What That Means for Lawmakers, Litigants, and Workers on SSRN. Here is the abstract:
For over 150 years, observers have noted a consistent pattern in the Supreme Court: its interpretations of the Constitution and statutes tend to favor institutional power over individual or collective human agency. Traditional analyses treat these outcomes as ideological drift, political capture, or isolated doctrinal errors, examining cases in isolation, era by era.
The Theory of Asymmetric Constitutional Interpretation (ACIT) offers a different lens. It argues that these results are neither accidental nor purely ideological. Instead, the Court exhibits a recurring interpretive behavior: when faced with perceived ambiguity, it systematically resolves questions in ways that shift authority from natural persons to institutions – while preserving the appearance of neutrality, fidelity to precedent, and judicial restraint.
Seen systematically rather than case by case, this asymmetry reveals a coherent pattern in the Court’s jurisprudence, explaining outcomes that have long seemed inconsistent or puzzling. ACIT provides a framework for understanding the Court’s structural preferences and the persistent, hidden logic shaping American law.