Chapter 5 recounts the 2nd Texas’ first battle experience at Shiloh and the subsequent allegations of cowardice. It explains efforts by the men to defend themselves, as well as their supporters. Their Col. John C. Moore filed multiple reports to explain his unit’s actions the second day of the fight; their Lt. Col. William P. Rogers vowed to prove his men’s valor.

Chapter 1 introduces our idea that group-based inequality is in large part the result of anger constraints placed on disadvantaged groups. We use research in social psychology to understand how public expressions of anger are reserved for the powerful. We develop a theory of how group-based social hierarchies in society are maintained by instituting rules of who can express anger and who cannot. We provide several examples of how United States race relations between Black Americans and whites exemplify this “anger rule.”

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 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.

The Conclusion returns to the need for historians to recognize the topic of cowardice in combat in order to gain a fuller understanding of war. Recovering the complicated histories of the Fire Zouaves and the 2nd Texas further helps to disassemble the glorification of war-making.

Chapter 2 develops our theoretical argument of how an “anger rule” has been applied to Black Americans. Throughout American history, we make clear that Black political anger has been depicted as menacing. Special rules, laws, and devices have been instituted to keep what American society considers a dangerous form of emotional expression from being unleashed. Society has neutralized this anger by applying an angry feeling rule to Black Americans. If they break this rule by voicing anger, they will be penalized. This punishment takes different forms throughout American history, such as the brutality inflicted upon enslaved Black Americans, the lynching of Black Americans, the mass incarceration of Black men and women, and denying federal assistance to Black families. In this chapter, we focus on another penalty – electoral defeat. We theorize that whites invested in this anger rule will punish Black politicians for expressing anger. We also contend that Black Americans navigate this anger rule by strategically rallying behind Black politicians who constrain their anger in political spaces dominated by whites. However, in Black spaces, we argue that this anger has a home among Black Americans.

Chapter 5 determines whether the Black public shares Black politicians’ awareness of the anger rule. We accomplish this task by examining if Black Americans express less political and racial anger in the presence of whites relative to Black Americans. Analyzing data from 2004 to 2012 American National Election Studies (ANES) along with the ANES cumulative file, we find that Black survey respondents report significantly less political anger than white respondents. This difference magnifies when Black Americans are in the presence of a white interviewer. These findings indicate that Black Americans recognize that their group must limit their anger in the presence of whites. It is this knowledge that, we believe, motivates Black Americans to be more willing to give Black politicians an emotional pass when they fail to express anger about politics.

Although the 13 United States courts of appeals are the final word on 99 percent of all federal cases, there is no detailed account of how these courts operate. How do judges decide which decisions are binding precedents and which are not? Who decides whether appeals are argued orally? What administrative structures do these courts have? The answers to these and hundreds of other questions are largely unknown, not only to lawyers and legal academics but also to many within the judiciary itself. Written and Unwritten is the first book to provide an inside look at how these courts operate. An unprecedented contribution to the field of judicial administration, the book collects the differing local rules and internal procedures of each court of appeals. In-depth interviews of the chief judges of all 13 circuits and surveys of all clerks of court reveal previously undisclosed practices and customs.

Although the 13 United States courts of appeals are the final word on 99 percent of all federal cases, there is no detailed account of how these courts operate. How do judges decide which decisions are binding precedents and which are not? Who decides whether appeals are argued orally? What administrative structures do these courts have? The answers to these and hundreds of other questions are largely unknown, not only to lawyers and legal academics but also to many within the judiciary itself. Written and Unwritten is the first book to provide an inside look at how these courts operate. An unprecedented contribution to the field of judicial administration, the book collects the differing local rules and internal procedures of each court of appeals. In-depth interviews of the chief judges of all 13 circuits and surveys of all clerks of court reveal previously undisclosed practices and customs.

The Supreme Court justices, as we have seen, have already shown some inclination toward constitutional symmetry. The Court’s overall output suggests an interest in visibly distributing wins and losses across partisan and ideological divides; its reasoning in some cases, and especially in some dissents, has invoked an imperative of symmetry more or less explicitly; and several narrow decisions reaching unexpected results suggest a self-conscious effort to maintain a public reputation for apolitical fidelity to law. This impulse, however, has remained inchoate and untheorized. As a result, the effort has appeared cynical and sporadic rather than principled and consistent. To fulfill its full potential as a stabilizing approach to constitutional law in our divided republic, judges and justices must embrace an ethic of symmetric interpretation more self-consciously and with greater consistency.