Saturday, June 25, 2022

Roe as the new Lochner

Gerard N. Magliocca

I want to pose a pedagogical question in light of Dobbs. Is there still any reason to teach the liberty of contact cases in an introductory constitutional law course? (I only get one semester for everything, so I must choose wisely.)

The rationale for teaching these cases was clear until yesterday. They represented an example of an unenumerated constitutional right that emerged, was applied, and was then undone. Accordingly, looking at that doctrine was a useful counterpoint or contrast to the right of privacy. Now, though, you don't need to teach Lochner and West Coast Hotel to make that point. You can just use Roe, Casey, and Dobbs. 

Another point along these lines is that courts will probably no longer use Lochner as an anti-canonical example in the way that, say, Chief Justice Roberts did in his dissenting opinion in Obergefell. Roe will now be that example. If Lochner is not canon and is no longer meaningful anti-canon, then why teach it?



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