I am writing an article on the concept of constitutional violations by the
Supreme Court (building on analyses in pieces I have published the last few
years in the Kentucky Law Journal and Notre Dame Law Review), and I am
looking for statements by Supreme Court Justices asserting violations of
the Constitution by the Supreme Court.
The paradigm statement I have in mind is found in Justice Black's dissent
in Griswold, where Black contends that the assertion of a "natural law"
substantive due process interpretive approach resulting in a "loose,
flexible, uncontrolled standard for holding laws unconstitutional, if ever
it is finally achieved, will amount to a great unconstitutional shift of
power to the courts."
Justice White in his Roe dissent, also hints at the possibility of such a
violation ("As an exercise of raw judicial power, the Court *perhaps has
authority* to do what it does today . . . .)(emphasis added). The second
Justice Harlan has a similar statement in his Mapp dissent (stating that
"this Court can increase respect for the Constitution only if it rigidly
respects the limitations which the Constitution places upon it, and
respects as well the principles inherent in its own processes. In the
present case I think we exceed both, and that our voice becomes only a
voice of power, not of reason."). A recent assertion of a similar nature is
found in Scalia's dissent in Dickerson (contending that the Supreme Court's
invalidation of a law of Congress due to its conflict with what the Court
itself views as a mere prophylactic rule rather than an actual
constitutional right is an act by the Court in "plain violation of the
Constitution").
So if anyone knows (or has a dim memory) of other similar statements by
any of the justices, or anything in the ballpark, I would appreciate any
tips. Off-list replies are welcome.
Best regards,
Jack
Jack Wade Nowlin
Jessie D. Puckett, Jr., Lecturer in Law
Assistant Professor of Law
University of Mississippi School of Law
University, MS 38677
(662) 915-6855
[EMAIL PROTECTED]
