Howard is back, and poses a very interesting constitiutional law question:
Assume that the [Supreme] Court issues a decision holding that the U.S. Constitution prevents a State from criminalizing certain specified conduct (e.g., early term abortion or consensual sodomy). Later, assume that the Court reverses course and holds that the U.S. Constitution does not prevent a State from criminalizing that same specified conduct.
Is the effect of the first ruling to wipe from the books in all States, or in any States, the laws criminalizing the specified conduct? Would the second ruling allow States to begin enforcing the laws that were in existence when first ruling issued that the first ruling had declared or implied were unconstitutional? Or would the second ruling require States that wished to criminalize the specified conduct to pass new laws doing so, even if those States had identical laws on the books when the Court’s first ruling issued?
Terrific question. I have some vague intuitions about the answer, but instead of “preening [my]sel[f] in front of the blogospheric mirror” I think I’ll turn this one over to our readers. If any one knows of a case where this happened or an article or book discussing this issue, please let us know about it in the comment section.
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