Skip to content

Lawrence Lessig, The Brilliance in Slaughterhouse: A Judicially Restrained and Original Understanding of "Privileges or Immunities" , 26 U. Pa. J. Const. L. 1 (2024).


Abstract: There is anger among many at the growing recognition that this conservative Supreme Court is marching, not resting. That little of the past--like precedent--will constrain it. And that the decisions of the preceding terms--overturning Roe v. Wade, expanding the "right to bear arms," ending affirmative action, among other extraordinary decisions--are just the beginning of a long and cold jurisprudential winter. Many on the Left have responded by proposing ambitious strategies for resisting the Court. There are calls for court packing, and for the impeachment of faithless justices. Two of the most prominent among younger American law professors have declared the "need is not to reclaim the Constitution, as many would have it, but instead to reclaim America from constitutionalism." This response is a mistake. The right strategy to answer people who believe that they are doing right is not to try to convince them their principles are wrong. It is to show them that they are not following their principles. The answer to the growing originalist majority on the United States Supreme Court is not to attack originalism, but to show how incomplete and inconsistent this Court's originalism has become. That is my aim in this essay. Not because arguments change minds. Necessarily. But because they set the predicate for what would be a principled and appropriate response by Congress. It is time for Congress to reclaim the role that the framers of our second Constitution--the Civil War Amendments--intended for it. Because a principled originalism could not resist that claim, and that claim, more than anything else, would liberate rights in America from their current, narrow judicial hold.