JSRG
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- Apr 14, 2019
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The argument appears to be that since in Roe v. Wade the Supreme Court based its decision on the Fourteenth Amendment, it would require a repeal of the Fourteenth Amendment to undo Roe v. Wade. The obvious problem with that argument is the fact that the Supreme Court has the power to overturn previous decisions, so the Supreme Court overturning that decision would thereby nullify it with no need to repeal the Fourteenth Amendment.You lost me. Does anyone else here get her point?
Indeed, that's what happened with the Lochner era (named after the case Lochner v. New York). The Supreme Court for several decades held the conviction that the Fourteenth Amendment granted a liberty to contract that prevented the government from enacting a lot of various labor laws, including maximum work hour or minimum wage laws. Then they later reversed course on that, overturning the previous decisions.
Actually, Lochner v. New York is probably a better comparison point with Roe v. Wade than Dred Scott v. Sandford. That's the case that John Hart Ely compared it to in "The Wages of Crying Wolf", his famous critique of Roe v. Wade that was published soon after Roe v. Wade was handed down. (note: John Hart Ely was pro-choice!) While it is out of date in some respects, it mostly still holds up today:
https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=5116&context=fss_papers
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