Δαφνη Ευτυχια Αρθουρος

From "The Man Behind the Texas Abortion Ban Now Has an Even More Radical Plan to Reshape American Law" (subhead: "Jonathan Mitchell argues that old laws never really die, even when they’re struck down by courts.") by Amy Littlfield, Mother Jones, 2022-04-05:

Mitchell then made another argument that struck at the foundations of American law. He contended that court rulings-even those issued by the U.S. Supreme Court-are far less sweeping than mainstream legal experts believe. According to his "Writ-of-Erasure Fallacy" theory, courts don't have the power to broadly "strike down" or "erase" laws they think are unconstitutional. Even more radical, he claimed that a law could be enforced retroactively against people who violated the statute during the time period when it had been blocked.

Stone took issue with the entire premise of Mitchell's theory during a recent Federalist Society event at the University of Chicago. The law professor-who was a Supreme Court clerk when Roe was handed down-said in an interview that his former student's strategy "simply fails to understand the critical legal concept of precedent" that "our whole legal system is based on."

Jennifer Ecklund, an attorney who represents the abortion funds targeted by Mitchell, found the retroactivity idea especially troubling. It "undermines the entirety of our system of constitutional justice. And that's not hyperbole," she said. "For this theory to take hold and become commonplace would be a complete undoing of constitutional jurisprudence in the 20th century."