The Brillance in Slaughterhouse: A Judicially Restrained and Original Understanding of “Privileges or Immunities”
Lawrence Lessig* | 26.1 | Citation: Lawrence Lessig, The Brillance in Slaughterhouse: A Judicially Restrained and Original Understanding of “Privileges or Immunities”, 26 U. Pa. J. Const. L. 1 (2023).
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.
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* Roy L. Furman Professor of Law and Leadership, Harvard Law School.