The Brilliance in Slaughterhouse: A Judicially Restrained and Original Understanding of 'Privileges or Immunities'

46 Pages Posted: 18 Aug 2022 Last revised: 27 Feb 2023

Date Written: August 9, 2022

Abstract

Conservative constitutionalism was born in a practice of judicial restraint, informed by originalism as its theory of interpretation. Dobbs is an obvious implication of both. But building on the work of Niko Bowie, this essay argues that those same principles should entail Congress's 14th Amendment power, under the "privileges or immunities clause," to determine federal privileges or immunities — including the rights recognized in Roe, and a power to regulate the scope of the 'right to bear arms.' Such an understanding makes sense of the original meaning of "privileges or immunities" as well as The Slaughterhouse Cases, and it affirms a principle of judicial restraint. The essay ends with recommendations about how Congress might best reassert its 14th Amendment authority and with a call for less partial originalism in the interpretation of the Civil War Amendments especially.

This is a substantial revision of an earlier draft.

Keywords: Privileges or Immunities Clause, Dobbs, judicial restraint, originalism, Second Amendment

Suggested Citation

Lessig, Lawrence, The Brilliance in Slaughterhouse: A Judicially Restrained and Original Understanding of 'Privileges or Immunities' (August 9, 2022). Harvard Public Law Working Paper No. 22-29, Available at SSRN: https://ssrn.com/abstract=4186210 or http://dx.doi.org/10.2139/ssrn.4186210

Lawrence Lessig (Contact Author)

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

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